Rechsteiner v. Kendell, (1999) 125 O.A.C. 356 (CA)

• Judge: Labrosse, Weiler and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 25, 1999
• Jurisdiction: Ontario
• Citations: (1999), 125 O.A.C. 356 (CA)

Rechsteiner v. Kendell (1999), 125 O.A.C. 356 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. OC.066

Andreas Rechsteiner (applicant/respondent on appeal) v. Susan Kendell (respondent/appellant on appeal)

(C31626)

Indexed As: Rechsteiner v. Kendell

Ontario Court of Appeal

Labrosse, Weiler and Goudge, JJ.A.

October 25, 1999.

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, in a decision reported 75 O.T.C. 114, 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 on a solicitor and client basis for the return application but reduced them by 25% to take account of the custody issue. The court awarded no costs to the mother. The mother appealed the costs order.

The Ontario Court of Appeal allowed the appeal and held that no costs should have been awarded in this case.

Family Law - Topic 2189

Custody and access - Practice - Costs - 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 suc­cessfully petitioned for the return of the child to Switzerland - The trial judge ordered that the mother pay the father $34,636.75 in solicitor and client costs - The judge found that solicitor and client costs were appropriate to show the court's disapproval of the mother's conduct - The Ontario Court of Appeal quashed the costs order - The court held that no costs should have been awarded here where custody of the child had been with the Swiss Guard­ianship Department and the father's ap­plication for the return of the child con­tained misleading information.

Cases Noticed:

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81; 6 R.F.L.(4th) 290, refd to. [para. 6].

Counsel:

Charlotte Murray, for the appellant;

Katherine Higginson, for the respondent.

This appeal was heard on September 24, 1999, by Labrosse, Weiler and Goudge, JJ.A., of the Ontario Court of Appeal.

The Court of Appeal released the following endorsement on October 25, 1999.