COURT FILE NO.: FS-10-70053-01 DATE: 2023-01-03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

OMAR KALAIR Acting in person Applicant

• and -

SYMA DAHRAKSHAN KABIR Sangar Duraiappah, for the Respondent Respondent

HEARD: September 28, 2022, at Brampton, Ontario Price J.

COSTS ENDORSEMENT

Nature of the Proceeding

[1] On September 28, 2022, this Court heard a motion by Ms. Kabir to dismiss two motions that Mr. Kalair had made to change final orders made on consent on April 26, 2013 (the 2013 Order), and February 1, 2019 (the 2019 Order), and to dismiss Mr. Kalair’s motion to have her found in contempt of a final parenting terms of the 2019 Order. After hearing argument, the Court refused Mr. Kalair’s request for an adjournment of Ms. Kabir’s motion, allowed Ms. Kabir’s motion, and dismissed Mr. Kalair’s motions. The parties were unable to agree on the costs of the motions. This endorsement addresses that remaining issue.

Background

[2] Mr. Kalair initially made a motion to change the 2013 Order. That order was based on a separation agreement the parties had entered into three months earlier, which was intended to settle, on a full and final basis, the issues of parenting, child and spousal support, and division of property.

[3] The 2013 Order provided that Mr. Kalair was to have access to the two children as agreed upon by the parties. He was to pay spousal and child support in amounts that were based on his deemed income of $45,000.00 per year. In satisfaction of the equalization payment that Mr. Kalair owed to Ms. Kabir, the net proceeds of sale of the matrimonial home were to be paid to Ms. Kabir, who was to retain half and deposit the remainder into a trust account for the children.

[4] Mr. Kalair failed to pay the required support and on June 10, 2014, the Family Responsibility Office (FRO) moved to enforce the 2013 Order. Mr. Kalair made a motion on March 3, 2015 to change the order, asking that his spousal support be terminated and that his child support be terminated or reduced, on the ground that he had been injured in a motor vehicle collision in March 2013, a month before the 2013 Order was made, which had reduced his income to the benefits he received under the Ontario Disability Support Plan (ODSP).

[5] Ms. Kabir disputed Mr. Kalair’s assertions that he was no longer earning income from self-employment and made a motion on March 10, 2017 to dismiss his motion to change on the ground that he had failed to comply with the 2013 Order for support, and with costs orders made against him, and on the ground that he had failed to provide the financial disclosure that the Court had ordered.

[6] Mr. Kalair’s motion to change and Ms. Kabir’s motion to dismiss that motion were delayed for various reasons, including changes of the parties’ representation. At a Trial Management Conference on February 1, 2019, Kumaranayake J. made a new final order, on consent, terminating Mr. Kalair’s spousal support obligation, reducing his ongoing child support obligation to an amount based solely on his ODSP benefits, and providing that Mr. Kalair was to have parenting time in accordance with a schedule that the parties agreed upon (the 2019 Order). Because the children resisted having parenting time with Mr. Kalair, Kumaranayake J. asked the Office of the Children’s Lawyer to prepare a Voice of the Child Report. At that point, the only remaining issues were a change of the children’s last names, which Ms. Kabir was requesting, arrears of spousal and child support, and an accounting of how the funds in the children’s trust had been spent.

[7] When Mr. Kalair’s legal aid funding ran out, he made a second motion to change on October 25, 2019, to enforce or change the 2019 Order, for spousal support from Ms. Kabir, and to be appointed joint trustee of the children’s trust. Based on that new motion to change, Legal Aid issued him a new certificate. He was still not paying child support to Ms. Kabir, even in the reduced amount in the 2019 Order, and still had not provided meaningful financial disclosure to Ms. Kabir, in spite of several orders requiring him to do so.

[8] The OCL produced two Voice of the Child Reports confirming that the children did not want parenting time with Mr. Kalair. The reasons they gave were that he denigrated them because he did not consider them to be observant Muslims and that he favoured his new partner and the child he had with her over them.

[9] At a Trial Management Conference on February 25, 2020, McSweeney J. set a date of April 2020 for trial of the parties’ motions. On October 12, 2020, because of further changes of representation, LeMay J. adjourned the trial to April 26, 2021, peremptory to both parties, to proceed with or without counsel.

[10] After further delays brought about, in part, by the suspension of court operations on March 15, 2020, owing to the COVID pandemic, and, in part, by further changes in representation, Emery J. conducted a combined Settlement Conference and Trial Management Conference on March 8, 2021, granting Ms. Kabir leave to proceed with her motion to dismiss Mr. Kalair’s motions to change on the ground of non-compliance and granting Mr. Kalair leave to make a cross-motion, which Fowler-Byrne J. had given him leave to do a year and a half earlier, on August 9, 2019, to have Ms. Kabir found in contempt of the parenting terms of the 2019 Order. Mr. Kalair finally made his contempt motion on September 29, 2021, but failed to deliver evidence in support of that motion.

[11] On June 13, 2022, the date when Ms. Kabir’s motion to dismiss was to have been heard, Mr. Kalair’s seventh lawyer, Mr. Rowe, applied to be removed as his lawyer. At Mr. Kalair’s request, Miller J. granted Mr. Kalair further time to retain an eighth lawyer and to serve and file the material in support of his contempt motion. She adjourned the hearing of Ms. Kabir’s motion to September 29, 2022, peremptory to Mr. Kalair, even if he was without counsel. That date was later advanced to September 28, 2022, as September 29 was not a day when long motions were heard.

[12] On September 28, 2022, this Court refused to grant Mr. Kalair a further adjournment to enable him to find and retain a new lawyer. The Court heard and allowed Ms. Kabir’s motion, dismissed Mr. Kalair’s two motions to change, and dismissed his motion to have Ms. Kabir found in contempt. It made an additional order that Mr. Kalair not bring any further motions to change without complying with the existing court orders for child support and financial disclosure.

[13] With the consent of Ms. Kabir, the Court reduced the amount of Mr. Kalair’s arrears of support to an amount based solely on his ODSP benefits.

Positions of the Parties

Ms. Kabir’s Position

[14] Ms. Kabir claims costs in the amount of $28,116.66 on a full recovery basis, inclusive of fees, H.S.T., and disbursements. That amount comprises:

a) $24,882.00 for fees, representing 82.94 hours at an hourly rate of $300; b) $3,234.66 for H.S.T. on fees.

[15] In the alternative, Ms. Kabir claims costs of $16,870.00, on a partial indemnity scale (60%), or $22,493.32, on a substantial indemnity scale (80%).

[16] Ms. Kabir relies on her substantial success in the motions. She additionally relies on an Offer to Settle she served on April 28, 2022.

Mr. Kalair’s Position

[17] Mr. Kalair submits that he should not be required to pay Ms. Kabir’s costs having regard to his limited financial resources. Additionally, he submits that Ms. Kabir was issued a Legal Aid certificate and therefore does not need costs in the amount she has claimed.

Analysis and Evidence

Principles to be Balanced

[18] The Court of Appeal for Ontario, in Beaver v. Hill, 2018 ONCA 840, at paras. 9 to 14; and Mattina v. Mattina, 2018 ONCA 867, at paras. 9 to 18, set out the principles to be applied when determining costs in family law matters. They are as follows:

a. Cost awards are discretionary; b. Judges in family law cases are not constrained by the scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c. The Family Law Rules, O. Reg. 114/99 expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a Judge may increase or decrease the costs that would otherwise be the appropriate; d. There is no provision in the Family Law Rules for a general approach of “close to full recovery” costs; e. Rule 24(12) sets out the appropriate considerations in fixing the quantum of the costs in a family law matter; f. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

[19] In awarding costs, I must balance two conflicting principles, namely, to indemnify Ms. Kabir, the successful litigant, for her cost of enforcing her rights or, in this case, her child’s right to child support, and to avoid making potential litigants feel unduly hesitant to defend their rights by requiring Mr. Kalair, the unsuccessful litigant, to bear all of Ms. Kabir’s costs as well as his own. [1] The ultimate objective in balancing these principles is to ensure that the justice system works fairly and efficiently: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25-26.

Discretion to be Exercised

[20] Per section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the entitlement to costs and the appropriate amount to be paid is “within the court’s discretion”. The Family Law Rules direct the court as to how it should exercise its discretion as to costs. Rule 24(1) presumptively entitles Ms. Kabir, as the successful party, to her costs. Although it circumscribes the broad discretion on costs which s. 131(1) of the Courts of Justice Act confers on the court, it does not completely remove the court’s discretion: see M. (A.C.) v. M.(D.), 67 O.R. (3d) 181 (C.A.). Rules 24(4) and 24(5), for example, state that a successful party may be deprived of costs if he or she has behaved unreasonably.

Objectives to be Served

[21] Indemnification of the successful party is the paramount objective, but not the only one, to be served by a costs order. Other objectives that the court has recognized include encouraging settlement, discouraging frivolous proceedings and unnecessary steps in litigation, and preserving access to justice: see Fellowes, McNeil v. Kansa General International Insurance Co., 37 O.R. (3d) 464 (S.C.), at para. 10; 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 82 O.R. (3d) 757 (C.A.), at para 45.

[22] Rule 24 of the Family Law Rules provides, in part:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. (4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. (5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle. (8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. [Emphasis added]

[23] Ms. Kabir was successful in obtaining an order dismissing Mr. Kalair’s motions to change and his motion to have her found in contempt. Mr. Kalair was successful in obtaining an order, with Ms. Kabir’s consent, substantially reducing his arrears of support owed under the 2013 Order to an amount based solely on his ODSP benefits.

Factors to be Considered

[24] Rule 24(12) lists the factors that the court should consider in quantifying costs:

24 (12) In setting the amount of costs, the court shall consider, (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter.

Importance and Complexity of the Issues

[25] Among motions to dismiss motions to change on the ground of non-compliance with court orders, this one was moderately complex. It required:

a) A review of an exceptionally long and complex procedural history; b) An examination of multiple delays and of who bore primary responsibility for them, including the evidence, when it was provided, of the reasons for Mr. Kalair’s numerous changes of representation and the justification for his final unsuccessful request for additional time to find another lawyer; c) An examination of the sequence of disclosure orders and of the extent of the parties’ compliance with them; c) An examination of the two Voice of the Child Reports, and of the reasons why the parenting terms of the 2019 Order had not been implemented; d) An analysis of the support orders made and of the extent to which Mr. Kalair’s non-compliance with them was justified; e) A balancing of the factors to be considered before depriving Mr. Kalair of the opportunity to have his motions heard.

Reasonableness of Each Party’s Behaviour

[26] As noted above, rule 24(1) provides that Ms. Kabir, as the successful party, is presumed to be entitled to her costs. In the normal course, such costs are awarded on a partial indemnity scale; however, the court has a discretion to order that they be paid on a substantial scale, or on a full recovery basis in exceptional cases: 131843 Canada Inc. v. Double “R” Toronto Ltd. (1992) 7 C.P.C. (3d) 15 (Ont. Gen. Div), at p. 17.

[27] Rule 24(4) of the Family Law Rules explicitly recognizes that costs may be used to express the court’s disapproval of a litigant’s unreasonable conduct. In the present motion, success was somewhat divided, in the sense that, with Ms. Kabir’s consent, Mr. Kalair’s arrears of support were substantially reduced, which helped address the principle of proportionality and avoid an excessively harsh consequence of not hearing his motions to change.

[28] Mr. Kalair failed to comply with three successive orders to make financial disclosure. His non-compliance resulted in Ms. Kabir having to bring her motion to dismiss his motions. While the injuries he suffered in his motor vehicle collision justified his failure to comply fully with the 2013 Order, his failure to comply with even the 2019 Order for child support, in a reduced amount based solely on his ODSP benefits, and his repeated failure to make full financial disclosure, justify costs on a higher scale.

[29] The Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3 set out the principle that should guide the court in deciding whether to award costs on a substantial indemnity scale. McLaughlin J., as she then was, stated:

Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs;

[30] The Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 18(14), dealing with the costs consequences of a failure to accept an Offer to Settle, differentiates between “costs” and “full recovery of costs”. Rule 24(8) also refers to “costs on a full recovery basis,” where a party has acted in bad faith.

[31] In Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (S.C.), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the Family Law Rules. He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in rule 24, without any assumptions about categories of costs. This characterization of costs under the Family Law Rules was approved by the Court of Appeal in C.A.M. v D.M., [2003] O.J. No. 3707 (C.A.), at para. 42.

[32] In Berta v. Berta, 2015 ONCA 918, at para. 92, the Court of Appeal stated:

In Biant v. Sagoo (2001), 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:

[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665, 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 67 O.R. (3d) 181 (C.A.), at para. 40.

[33] It is generally not appropriate to award more than 85 per cent of a successful litigant’s bill, unless the unsuccessful litigant has acted unreasonably or in bad faith, to the extent that censure is appropriate: Osmar v. Osmar, 8 R.F.L. (5th) 387 (Ont. S.C.). While Mr. Kalair acted unreasonably, I did not find that his disobedience of the 2013 Order’s support terms was totally wilful, as his ability to pay had been adversely affected by the injuries he had sustained in his motor vehicle collision. I therefore do not find that his conduct, in that respect, was so reprehensible or outrageous as to justify costs on the highest scale: see TMS Lighing v. KJS Transport, 2014 ONSC 7148, at paras. 23-31. Nevertheless, in a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis: Sordi v. Sordi, 2011 ONCA 665. This leaves a range of costs from nominal to just short of full recovery.

Written Offer to Settle

[34] Ms. Kabir served an Offer to Settle dated April 28, 2022. It offered to settle the proceeding on terms whereby Mr. Kalair would withdraw his two motions to change, would pay the outstanding orders against him, fixed at $9,000.00, would pay child and spousal support arrears in the reduced amount of $4,207.10 as of April 1, 2022, and would pay ongoing child support in the amount of $197.00 per month based on an imputed income of $15,400.00 per year (the approximate amount of his ODSP benefits), and would have parenting time with the child H.I.B.K. as per her wishes. Each party would bear their own costs if the offer was accepted by May 4, 2022.

[35] Ms. Kabir’s offer, if Mr. Kalair had accepted it, would have resolved the support issues on essentially the same terms as those contained in the order this Court made on December 1, 2022, after hearing Ms. Kabir’s motion. While that order did not alter the parenting terms of the 2019 Order, it dismissed Mr. Kalair’s motion to have Ms. Kabir found in contempt of that order, based on its finding that the failure to implement those terms had resulted from the children’s refusal, for reasons set out in the Voice of the Child Reports. The practical effect of the order made on December 1, 2022 is that parenting, going forward, will be in accordance with H.I.B.K.’s wishes, as Ms. Kabir’s offer proposed.

[36] If Mr. Kalair had accepted Ms. Kabir’s offer, it would have avoided her lawyer having to spend over 15 hours in the proceeding after the offer was served. It was unreasonable for Mr. Kalair not to have accepted the offer.

[37] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. However unreasonable behavior will, in appropriate circumstances, result in a higher award of costs. In Perri v. Thind et al. (2010), 98 O.R. (3d) 74 (S.C.), Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the range of costs normally made in motions court. In doing so, he stated that costs orders are not designed to be a punishment. However, he noted that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct: at paras. 24-26, 32-33.

The Lawyer’s Fees, including his Hourly Rate

[38] Ms. Kabir was represented by Sangar Duraiappah. Mr. Duraiappah was called to the Bar in 2017. While solely advisory, the “Information for the Profession” bulletin, published by the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”), suggested a maximum hourly rate (on a partial indemnity scale) of $225.00 for lawyers with less than 10 years experience. While the maximum rate is normally reserved for matters of the greatest complexity, I am satisfied they are reasonable in the present motion, which was factually complex, for the reasons noted above.

[39] The Costs Bulletin, published in 2005, is now dated. It is therefore appropriate to adjust the suggested rates to take account of inflation. Smith J. took this approach in First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359.

[40] Mr. Duraiappah’s partial indemnity rate of $225 in 2005 is the equivalent of around $321.73 today. The hourly rate of $300, which Ms. Kabir claims for her lawyer, is reasonable, having regard to Mr. Duraiappah’s hourly rate, as suggested in the Costs Bulletin, adjusted for inflation.

[41] In Geographic Resources v. Peterson, 2013 ONSC 1041, Aitken J. made clear that the starting point for arriving at an appropriate hourly rate when fixing costs is the Costs Bulletin, not the actual hourly rate the lawyer charged her client. The actual rate charged is irrelevant, except as a limiting factor in preventing the costs awarded from exceeding the actual fees charged, in keeping with the principle of indemnification. The Costs Subcommittee’s rates apply to all lawyers and all cases, such that everyone of the same level of experience starts at the same place.

[42] Although Geographic Resources was a civil action, Aitken J.’s approach in that case applies equally in the family law context. The court adjusts the hourly rate, based on the Costs Bulletin, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 24. If an excessive amount of time was spent, or too many lawyers worked on the file, which was not the case here, the court reduces the resulting amount of fees accordingly. As long as the resulting amount does not exceed the amount actually charged to the client, the actual fee that the client agreed to pay is irrelevant.

[43] Mr. Kalair disputes Ms. Kabir’s entitlement to costs based on an hourly rate that exceeds the Legal Aid rate. He has not offered any authority in support of that position. The fact that Ms. Kabir retained Mr. Duraiappah on a Legal Aid certificate does not affect the rate which she is entitled to claim for the services Mr. Duraiappah provided. The Legal Aid Services Act, 1998, S.O. 1998, c. 26, s. 46(1) provides:

46(1) The costs awarded in any other order made in favour of an individual who has received legal aid services is recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services. [Emphasis added.]

[44] In Nairn v. Lukowski, the applicant received services on a Legal Aid certificate, and the Family Court stated, “the fact that she was on Legal Aid does not limit costs recoverable to the amount payable to counsel pursuant to the Legal Aid rates…” In that case, the court awarded costs at an hourly rate of $200, which exceeded the Legal Aid rate. In Ramcharitar v. Ramcharitar, Justice Wein reviewed the jurisprudence and came to a similar. Justice Wein stated, at para. 25:

…There is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rate would be accordingly reduced.

[45] The court has taken a similar approach to fees charged under a pre-paid legal services agreement, such as the ones administered by C.A.W. and Unifor. I adopt the reasoning in those cases, and particularly the decision of this court in Friday v. Friday, 2013 ONSC 6179, in which this court, at para. 52, held that such agreements should not be construed as setting an upper limit on costs otherwise payable to a successful party.

[46] The Costs Bulletin entitles Ms. Kabir’s lawyer to claim a maximum hourly rate of $321.73 on a partial indemnity scale for Mr. Duraiappah after adjusting his 2005 hourly rate for inflation. Ms. Kabir claims her costs at $300 per hour, which is the equivalent of $210 in 2005. That amount is $15 per hour less than the maximum hourly rate for a lawyer with less than 10 years’ experience. I find that the rate claimed is reasonable.

Time Properly Spent on the Case

[47] Mr. Duraiappah has submitted a Costs Outline in which he states that he spent 82.94 hours on the motions. The time is documented in detailed entries recording the time spent from December 16, 2020, to September 28, 2022. This includes 7 hours attendance at hearings on June 13, 2022, when the motion was adjourned, and on September 27 and 28, 2022, when the motion was heard.

[48] Mr. Kalair has not challenged the time Mr. Duraiappah spent. He also has not disclosed the time he or his lawyers spent. In Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 64 O.R. (3d) 135, at para. 10, Winkler J., then a motion judge, stated:

The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made. In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i). In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter. [Emphasis added]

[49] In the absence of information from Mr. Kalair as to the time he or the lawyers who represented him spent, I find that the time claimed by Mr. Duraiappah was reasonable.

Proportionality

[50] I have considered the proportionality of the costs that Ms. Kabir has claimed. In Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, the Court of Appeal indicated that as a general rule in family law proceedings, “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”. That principle is reflected in rule 24(12)(a) of the Family Law Rules.

[51] There were substantial issues, both financial and otherwise, at stake in the proceeding. One of the issues still unresolved following the 2019 Order was Mr. Kalair’s arrears of support. On July 1, 2021, those arrears amounted to $56,655.21. There were also parenting issues that arose from Mr. Kalair’s motion to have Ms. Kabir found in contempt, namely, the parenting terms of the 2019 Order, the children’s wishes with regard to parenting, and whether Ms. Kabir had complied with her obligations in relation to the Order.

[52] Ms. Kabir’s motion was made necessary by Mr. Kalair’s repeated failures to comply with disclosure orders. His compliance was required to enable Ms. Kabir to respond adequately to his arguments in support of changing the support terms of the 2013 Order. The hearing of the motion was necessitated by Mr. Kalair’s failure to accept Ms. Kabir’s Offer to Settle. In these circumstances, the amount Ms. Kabir claims for costs are proportionate to the issues at stake.

What is Fair and Reasonable

[53] I must, at this point, step back and examine the overall award with a view to determining whether it is “fair and reasonable”. In making this determination, I take into account the reasonable expectation of the parties concerning the amount of costs: see Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.).

[54] Mr. Kalair submits that he should not be required to pay Ms. Kabir’s costs having regard to his limited financial resources. Chappel J. dealt with a similar argument in Roloson v. Clyde, 2017 ONSC 5255, at para. 21:

Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of liability for costs and the appropriate quantum of a costs award…. However,…, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Biant; Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.)). A party’s limited financial means will also be accorded less weight if the court finds that the party acted unreasonably. As Curtis, J. stated in Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.), “[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.”

[Emphasis added.]

[55] A costs award against Mr. Kalair will not have a significant negative impact on the parties’ children as Mr. Kalair’s own conduct has resulted in the children choosing not to have contact with him. Mr. Kalair’s conduct in the proceeding was unreasonable, as he repeatedly failed to provide full financial disclosure, and chose to pursue his motions in the face of a reasonable Offer to Settle from Ms. Kabir that would have achieved a similar outcome with lesser costs.

[56] Having regard to all of the circumstances, including the resources of the parties, their conduct, and the issues and amounts at stake, Mr. Kalair should reasonably have expected to pay at least the amount Ms. Kabir has claimed for her costs, and that that amount is fair and reasonable.

Conclusion and Order

[57] Based on the foregoing, it is ordered that:

1. Mr. Kalair shall pay Ms. Kabir’s costs of the motions, fixed in the amount of $28,116.66, inclusive of fees, H.S.T. and disbursements.

2. These costs shall be payable forthwith, together with 4% post-judgment interest from today’s date, and shall be enforceable as child support by the Family Responsibility Office.

(Signature of Judge) Price J.

Released: January 3, 2023

COURT FILE NO.: FS-10-70053-01 DATE: 2023-01-03 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: OMAR KALAIR Applicant - and – SYMA DAHRAKSHAN KABIR Respondent COSTS ENDORSEMENT Price J. Released: January 3, 2023

[1] See Mark Orkin, The Law of Costs (2nd edition) (2001 Canada Law Book), at p. 23.