QM v RM

The Court addressed a costs decision arising from a relocation and parenting dispute in which the father was largely successful, including being granted permission for the child’s relocation to Vancouver. After the main decision and a subsequent refusal to reopen the matter, the Court had directed the parties to make costs submissions covering the hearing, earlier proceedings, Arbitration costs, and related steps. The father filed detailed costs submissions seeking a substantial recovery, including enhanced costs based on alleged litigation misconduct by the mother. The mother did not provide any costs submissions despite being given multiple opportunities.

The Court reviewed the applicable principles governing costs in family relocation cases, emphasizing that while Schedule C often serves as a starting point, modern jurisprudence allows flexibility, including percentage-based or lump-sum awards where appropriate. The Court noted that costs in parenting and mobility cases must balance two competing considerations: discouraging unreasonable litigation conduct while avoiding outcomes that would unduly deplete resources needed for children’s wellbeing.

On the evidence, the Court found that the relocation proceedings were highly complex, lengthy, and heavily contested, involving extensive Affidavits, expert evidence, and multiple Court attendances. It also found that the mother had engaged in significant litigation misconduct throughout the proceedings, including breaches of Court Orders, improper conduct toward the Court-appointed expert, unfounded allegations against the father, and other behaviour that increased the length and cost of the litigation. The father’s conduct, by contrast, was generally reasonable during the relocation hearing.

The Court rejected the father’s request to calculate costs primarily as a percentage of his actual legal fees, noting that his billing information was insufficiently detailed to assess reasonableness under solicitor-client standards. Instead, it relied on Schedule C as a more reliable framework, adjusted for inflation and enhanced where justified.

The Court awarded costs separately for different stages of the litigation, including Arbitration-related steps, pre-hearing Applications, the relocation hearing itself, and the mother’s unsuccessful post-decision Application. It applied multipliers in certain instances due to misconduct and complexity, particularly in relation to the relocation hearing and post-decision litigation.

For the Arbitration proceedings, the Court awarded modest costs based on mixed success. For the pre-hearing steps, it applied Schedule C with inflation adjustments and limited multipliers where justified, reflecting varying levels of success and conduct. For the relocation hearing itself, the Court found the father had substantial success and that enhanced costs were warranted due to the mother’s litigation misconduct and the complexity of the matter, ultimately awarding approximately $87,728 for that phase.

The Court also awarded enhanced costs in relation to the mother’s unsuccessful Application to reopen or vary the earlier decision. It found that the Application was not only unsuccessful, but also based on serious and unsubstantiated allegations, including claims of fraud against the father that were rejected. The Court also raised concerns about the reliability of the mother’s materials, noting indicators of improper or undisclosed use of content generated through artificial intelligence (“AI”), including “hallucinated” case citations and misstatements of the prior decision.

The Court treated the use of AI in a non-compliant or misleading way as an aggravating factor, emphasizing that self-represented litigants are still required to ensure the accuracy of their materials and comply with applicable Court expectations. It further noted that, even aside from the AI issue, the Affidavit and submissions reflected a lack of care and contained inaccuracies that independently justified a costs sanction. The Court also considered the mother’s failure to comply with the original decision shortly after it was issued as part of a broader pattern of non-compliance. Taken together, these factors led the Court to conclude that the Application warranted enhanced costs.

In total, the Court awarded the father approximately $105,495.34 inclusive of GST, plus disbursements, concluding that the award was proportionate and fair in light of partial indemnification principles, the mother’s conduct, and the need to avoid undermining the child’s best interests while still holding parties accountable for litigation behaviour.