Further to an Order that the mother return the parties’ child into the father’s custody, the father sought full indemnity Costs or, alternatively, enhanced Costs under Schedule C, Column 5 with a multiplier to be applied.

The Court found that Costs in family proceedings are in the Court’s discretion pursuant to Rules 10.29(1), 10.31 and 10.33. Rule 10.29(1) states that a successful party is prima facie entitled to Costs from the unsuccessful party. In determining what amount of costs should be awarded, the Court considers those factors enumerated in Rule 10.33. Following its consideration of Rule 10.33, the Court is directed to proceed to Rule 10.31 which grants the court broad discretion to craft an award that is reasonable and proper pursuant to Rule 10.31(1)(a), or that is appropriate in the circumstances pursuant to Rule 10.31(1)(b).

The purpose of a reasonable and proper costs award pursuant to Rule 10.31(3)(a) is to provide the successful party with partial indemnification of its Costs. Upon consideration of the factors enumerated in Rule 10.33(1), the Court found that father was completely successful in his application, the issues were important, and the Action was relatively complex.

Finally, in assessing the factors in Rule 10.33(2) in conjunction with the circumstances warranting a solicitor-client Costs as set out in Jackson v Trimac Industries Ltd, 1993, 138 AR 161, the Court found that the child’s wrongful abduction by the mother (her second wrongful abduction) was willful, blameworthy and without any lawful basis.

As such, the factors set out in Rule 10.33 weighed in the father’s favour and the mother’s actions justified the rare and exceptional circumstances to depart from Costs on a party-party basis. The Court ordered the father to be fully indemnified for his assessed Costs on a solicitor-client basis, with the Costs being assessed by an assessment officer in accordance with Rule 10.34.