The "cost" of Mobility

[Tayken]

As always, mobility, the moving a child from their habitual residential location to another is a hot topic on this site. In response to many of the questions, I often warn posters to the extreme costs for these trials.

Furthermore, due to the complexity and the absolute need to leverage the courts for mobility, cost awards rarely punish the parent that wants to move or the parent opposed to the move.

I again remind everyone of the wise words of the Honourable Madame Justice Mossip:

[1] There is no other area of family law litigation in which the idea of “winner” and “loser” is less applicable than that of mobility cases. It is also true, that even with the very best parents, it is the area where “win-win” solutions can rarely, if ever, be fashioned. Parents involved in a mobility dispute often have to resort to the courts, because even with the best of intentions, and with both parties doing their best to put their child’s interest before their own, they cannot find a solution to the desire of one parent to move with the child, and the other parent vehemently resisting that move.

Source: Van Rassel v. Van Rassel, 2008 CanLII 37217 (ON SC), par. 1, http://canlii.ca/t/1zt7g#par1

Now, here is some case law to consider that demonstrate the costs of bringing a mobility matter to trial:

McKenzie v. McKenzie, 2018 ONSC 1355 (CanLII)
Date: 2018-02-28
File number: FS-17-417086
Citation: McKenzie v. McKenzie, 2018 ONSC 1355 (CanLII), http://canlii.ca/t/hqpm3

This matter is a unique one where it deals with the moving parent requesting the release of funds from the matrimonial home to pay for a mobility trial. This is the first time I have seen the details of what it truly costs in such black-and-white analysis.

It should serve as a warning to all parents looking to move with the children. This is not without SIGNIFICANT COST!

My emphasis added in (italics):

1. This is a motion by the Respondent for an order for interim disbursements, namely $150,000 to enable her to retain counsel for (a mobility) trial and $30,000 to enable her to retain an expert for (a mobility) trial.

Paragraph 19 demonstrates the level headed approach that professionals like Mr. Niman is with his clients:

19. ... In his affidavit, the Applicant said that “the mobility trial will be a financial catastrophe for our family from which we will never recover.”

At least one parent truly realizes the "financial catastrophe" mobility matters are for families. In Paragraph 23 we get a detailed view of the "costs" associated with mobility:

23. In her affidavit sworn February 13, 2018, the Respondent (mother) summarized the litigation budget proposed by Ms. Yates as follows:

Questioning for two days plus four days preparation: $23,760
Trial Preparation for Ms. Yates, Ms. Cohen, law clerk and associate lawyer: $66,400
Attendance at trial 10 days at 10 hours per day by Ms. Yates and Ms. Cohen: $50,000
Disbursements: $5,000
Total: $140,660 Without GST

Source: McKenzie v. McKenzie, 2018 ONSC 1355 (CanLII), par. 23, http://canlii.ca/t/hqpm3#par23

For fun, lets tack on the 13% HST: $158,945.80

Ms. Yates and Ms. Cohen cost about $500.00 an hour (taking the 10 days at 10 hours costing 50,000).

Now the judge does remove the $23,760 from the consideration in para. 24 but, it still leaves the cost of $116,600+HST.

Now, take this into consideration:

26. The litigation budget without the allocation for questioning is remarkable in that Ms. Yates and Ms. Cohen have agreed to significantly reduce their hourly rates so as to enable the Respondent to have access to quality legal services. I commend them for their professionalism.

Source: McKenzie v. McKenzie, 2018 ONSC 1355 (CanLII), par. 26, http://canlii.ca/t/hqpm3#par26

That estimate for 116,600+HST is based on a REDUCED RATE! Other costs orders have Ms. Yates billing herself at 380-420 an hour. So anyone interested in a full cost should probably view this from an $850 cost with two lawyers on the file like this.

If you apply the rate of $850/hour to this file the actual cost to bring this to trial is 198,220+HST.

Welcome to the true cost of mobility. Judge accordingly if it is really "worth it" to move with the children.

Good Luck!
Tayken

[Stillbreathing]

Those costs or more would also be applicable to a full blown trial in which no issues have been settled. Family law is ridiculously expensive especially if one party is unreasonable and won’t settle. That is why so many people are forced to self rep. Given the outrageous costs for a mobility trial and the equally outrageous time frame to get to said trial, this becomes a factor in desperate parties ( especially those who are poor and escaping bonifde abusive relationships) to choose self help and move without court permission.

[Tayken]

Those costs or more would also be applicable to a full blown trial in which no issues have been settled. Family law is ridiculously expensive especially if one party is unreasonable and won’t settle. That is why so many people are forced to self rep. Given the outrageous costs for a mobility trial and the equally outrageous time frame to get to said trial, this becomes a factor in desperate parties ( especially those who are poor and escaping bonifde abusive relationships) to choose self help and move without court permission.

An excellent observation.

One can take the total amount of days, estimate 10 hours a day billing (as outlined in the case law) and apply their /hour cost of legal representation. The 6000 in disbursements is about right too.

10 hours * 360 (lawyer cost) * _numberoftrialdays_ = your actual cost.

Trials are not cheap. The same formula could be applied to motions and the disbursements are around 600-1200 depending on what is required.

Good Luck!
Tayken

[rockscan]

I always marvel at the costs people incur in court for things that had they been married, would not have been that difficult. If you were married and your spouse had a good job would moving be such an easy decision? Would you ask yourself the questions of is this a good plan, will the kids be impacted, what about school, what is the cost of living etc. When I read a mobility case I tend to wonder why it was such a simple decision to just move rather than think about all of the questions you would ask yourself if you were married and wanting to move.

I also can’t believe anyone would spend $100,000-200,000 and more to fight for something that isnt worth that.

[Tayken]

I always marvel at the costs people incur in court for things that had they been married, would not have been that difficult. If you were married and your spouse had a good job would moving be such an easy decision? Would you ask yourself the questions of is this a good plan, will the kids be impacted, what about school, what is the cost of living etc. When I read a mobility case I tend to wonder why it was such a simple decision to just move rather than think about all of the questions you would ask yourself if you were married and wanting to move.

All valid points. It is indeed puzzling as to how some people are willing to try and move for opportunities that would never be able to pay the debt of trial. In a case of moving meaning an income increase from say 250,000 to 500,000++ maybe... But, really that is a 1%er problem. I would gather than the majority of mobility cases are not dealing with the issues of the 1%.

I also can’t believe anyone would spend $100,000-200,000 and more to fight for something that isnt worth that.

Penny wise... POUND FOOLISH!