Court File and Parties
Court File No.: D57317/12 Date: 2014-02-19
Ontario Court of Justice Toronto North Family Court
Between:
Mahdy Sheidaei-Gandovani Applicant
- and -
Aazam Makramati Respondent
Counsel:
- Howard J. Feldman, for the Applicant
- Jonathane Ricci, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] This is a costs decision arising out of a motion brought by the respondent (the mother) seeking a temporary order preventing the applicant (the father) from traveling outside of Canada with the parties' five-year-old child (the child). This motion was dismissed after an oral hearing.
[2] The parties were given the opportunity of making costs submissions. The father seeks his full recovery costs of $6,655. The mother asks that no costs be awarded.
Part Two – Background
[3] The parties engaged in intensive litigation concerning the parenting arrangements for the child in 2012 and the early part of 2013. Several motions were brought. There were nine court appearances. The parties eventually resolved the case. Their consent was incorporated into the final order of Justice Carole Curtis dated February 22, 2013 (the final order). Both parties were represented by counsel at the time.
[4] The final order provides that the parties have joint custody of the child with an equal time-sharing schedule. The father was granted decision making authority over the child's medical and health matters. The relevant travel provisions are set out in paragraphs 7, 8 and 10 of the final order as follows:
7. Each parent is allowed to take the child overseas with one week notice by email to the other parent. There is no need for consent. Trips to Caribbean or South America should not exceed approximately a week. Each parent shall not take the child overseas more than 4 times per year.
8. If the father decides to enroll the child in one of the European or American soccer schools in the future, it will be with the condition that the mother to be with the child for duration of the course, then the father is allowed to enroll him in such schools. The father shall also pay for the mother's expenses such as air ticket, lodging and food.
10. Once a divorce order has been granted to the parties both in Canada and Iran, the father may decide to take the child to Iran once a year for a period of one month, on the condition that the mother has to be with the child and she needs one month's notice by email. The father will pay for the mother's airfare. This is conditional based on the divorce being granted in Canada and the religious divorce being granted in Iran. Neither the child nor the mother will take the trip to Iran until this condition is completed.
[5] On December 19, 2013, the father gave the mother notice of his intention to take the child on a one-week trip to a resort in the Dominican Republic. He subsequently advised her that the trip would take place from January 20 to 27, 2014 and provided her with a travel itinerary. There was no issue that he complied with the notice provisions in paragraph 7 of the final order.
[6] The child suffers from Juvenile Rheumatoid Arthritis. He functions better in warmer weather. The father wanted to give the child a break from this harsh winter.
[7] The mother, without counsel, brought a motion without notice on January 16, 2014 seeking an order preventing the father from removing the child from Ontario. [1] She alleged that the father had threatened several times to abduct the child to Iran and told her he would do this during his proposed trip with the child to the Dominican Republic.
[8] I held the matter down and asked duty counsel for the mother to notify Mr. Feldman (the father's counsel) that the mother was at court asking for this relief. Mr. Feldman promptly attended at court and indicated that he was prepared to proceed with the motion. At that point, the mother sought a one-day adjournment. She advised the court that she had retained counsel. The adjournment request was granted. I advised the parties that I might require oral evidence on the motion as there was a significant credibility issue.
[9] The parties attended at court with their counsel on January 17, 2014. The mother sought an adjournment, with a temporary term preventing the father from removing the child from Ontario. Her counsel advised the court that he was in possession of an audiotape that the mother had made the previous evening when meeting the father at the child's Tae-Kwon-Do class. He advised the court that this audiotape supported the mother's contention that the father was threatening to abduct the child to Iran. He told the court that the parties were speaking on the audiotape in Farsi and he wanted to obtain a certified translation.
[10] The father opposed the adjournment request. If the adjournment had been granted on the non-removal term that the mother requested, it would have scuttled the trip to the Dominican Republic.
[11] After discussion with counsel, the matter was held down to see if the court could reach an independent Farsi interpreter to attend at court and translate the audiotape. The court was able to reach a Farsi interpreter. It was then agreed that the interpreter would review the audiotape and summarize its contents for both counsel. The parties would then see if they could resolve the matter, or alternatively, if they could agree upon what the audiotape said (or didn't say).
[12] The parties followed this process. They couldn't resolve the matter or agree on what was on the audiotape. After discussion in court, it was agreed that the Farsi interpreter would testify and summarize the contents of the audiotape. Both parties would be entitled to question him. Further, the parties would be entitled to cross-examine the other on their affidavit evidence. [2] Once this was done, submissions would be made.
[13] The Farsi interpreter testified. He said that the beginning of the audiotape was inaudible. [3] However, there was nothing in the audible portion of the audiotape that supported the mother's allegations. In fact, based on the interpreter's testimony, I found that it supported the father's position. I commented that it appeared that the mother (who had surreptitiously taped the father) was attempting to prompt the father into making prejudicial statements. Notwithstanding this, the father made statements to her such as "Why would I take the child to Iran? We have a special child whose life is here. The medical treatment in Canada is much better".
[14] The parties both testified. In oral reasons, I found the father's evidence more reliable than the mother's. There was no evidence of a triggering event that would cause the father to make abduction threats. In fact, the parties had been discussing a joint trip to Iran with the child and the parties had cooperated to obtain Iranian passports for the mother and the child. [4] The child's medical condition required a high level of medical care. The father had consistently set out that the best medical care for the child was in Canada (and confirmed this on the audiotape). The father has a successful career in Canada. He has significant involvement and decision-making authority with the child. He has always complied with court orders. There was no apparent reason for him to abduct the child. I found it to be unlikely that the father would take the child to Iran, when he was properly giving the mother notice of a trip to the Dominican Republic, particularly when the father held the child's Canadian passport and could have left at any time without any notification, if he had bad intentions.
[15] I found the mother's evidence to be scattered and inconsistent at times. At times she misrepresented the facts. An example is when she alleged that the father had over-held the child, in that she was to pick up the child at noon. However, on cross-examination it became apparent that she was at work during the day and the arrangement was for her to pick up the child after his evening activity.
[16] I dismissed the mother's motion. I made an order that Mr. Feldman hold the father's Iranian passport in trust until he returned with the child, but emphasized that this was being ordered to provide some comfort to the mother, who appeared convinced that the father would abduct the child.
[17] The father returned with the child from their vacation.
[18] The hearing took the full day on January 17, 2014.
Part Three – Position of the Parties
[19] The father claims full recovery costs. He submits that the mother acted in bad faith. He states that the mother made incomplete disclosure on her motion without notice, improperly recorded her conversation with the father surreptitiously and brought this motion with the sole purpose of frustrating his planned trip with the child. He argued that the motion was a litigation tactic to obtain sole custody of the child. He referred to past history, where his access was suspended for two months in 2012 due to allegations made to the Children's Aid Society about inappropriate discipline. The society investigated these allegations and closed their file.
[20] The mother claims that she was forced into bringing this motion due to the multiple threats of the father to abduct the child, and it was only by bringing this motion that the father returned the child from his trip. She denied any bad faith on her part. She continued to assert in her costs submissions that the abduction threats were made, even though I found, on a balance of probabilities, that such was not the case.
Part Four – Legal Considerations
[21] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants, bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[22] Subrule 24 (1) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe.
[23] The court is required to consider the factors set out in subrule 24 (11) of the rules, which reads as follows:
24 (11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party's behaviour in the case;
(c) the lawyer's rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[24] Subrule 24 (8) of the rules states that 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. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v. S. (M.).
[25] Subrule 24 (5) of the rules provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24 (11) (b) above). It reads as follows:
DECISION ON REASONABLENESS
(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;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[26] Family law litigants are responsible for and accountable for the positions they take in the litigation: See: Heuss v. Surkos, 2004 ONCJ 141.
[27] The court can award full recovery costs even if unreasonable behaviour does not rise to the level of bad faith. See: Osmar v. Osmar.
[28] One of the considerations in an assessment of costs is to fix costs in an amount that is "fair and reasonable" for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff'd 2010 ONCA 326.
Part Five – Analysis
[29] The father was the successful party on the motion. The mother did not rebut the presumption of his entitlement to costs.
[30] This motion was not difficult or complex. However, it was important to the parties.
[31] The mother did not act in bad faith. She subjectively felt there was a risk that the father would abduct the child. At one point she testified, "even if there is a 1% chance, it should be stopped". I commented in my decision that the parties' communication is clearly very poor and that they interpreted each other's actions and statements in the most negative manner possible. I observed that the parties reacted to each other's testimony during the hearing in a disrespectful manner. I commented to the father that his presentation (at times arrogant and dismissive) was doing him no favours, as it just escalated the mother's fears. He is not blameless in this matter and is partially responsible for the family dynamic that fueled this motion. It is for this reason that I have slightly discounted his costs claim.
[32] The mother acted unreasonably on the motion. In an effort to adjourn the motion (which would have resulted in the trip being cancelled), the mother represented that the audiotape was damaging to the father's case. At the time, she was the only person who had listened to the audiotape. She knew what portion was inaudible and what portion was audible. She knew or ought to have known that the audible portion of the audiotape did not damage the father's case. [5]
[33] The mother also acted unreasonably by surreptitiously taping her conversation with the father on January 16, 2014. In Hameed v. Hameed, 2006 ONCJ 274, I wrote at paragraphs 11 and 13:
[11] I ruled that this evidence was inadmissible. Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
[13] The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. The reasons that the father put forward in this matter fall well short of this standard.
[34] The recording of a threat by a parent to abduct a child is a good example of a compelling reason for the admission of a surreptitiously recorded audiotape. Evidence of such threats goes to the root of a child's safety and best interests and will trump policy reasons for its exclusion. However, if (as was the case here), the recording does not state what it is purported to state, there will likely be adverse consequences to the party seeking its admission. Surreptitious recording of conversations is behaviour that courts should discourage. Costs are an appropriate mechanism to do this.
[35] The hearing was elongated by the issues related to the audiotape and the mother's unsuccessful challenge of the independent interpreter's translation of its contents.
[36] The parties litigated extensively in 2012 and early in 2013. A clear message needs to be sent to the parties that unreasonable litigation will not be tolerated and will be met with stiff costs consequences. The mother's motion was unreasonable litigation.
[37] The father is correct that the mother failed to include very relevant evidence in her affidavit in support of her without notice motion. However, I considered that she was self-represented and under time pressures when she prepared this affidavit. I gave this consideration less weight.
[38] I did not consider the references made to settlement negotiations made in the costs submissions. These were without prejudice conversations. No formal offers to settle were made. This is not surprising, given the fast-moving nature of the motion.
[39] I also did not give any weight to the father's submission that this motion was a replication of the mother's attempts to frustrate his relationship with the child in 2012. This finding was not made in the original proceeding. It would be inappropriate to make such a finding at this time.
[40] The rates charged by counsel for the father ($450 per hour) are reasonable for a lawyer with his skill and experience. I carefully reviewed his bill of costs and found it to be reasonable. He essentially had to drop everything on January 16 and 17, 2014 and devote all of his time to this case. This included attending at court on two days, preparing, on short notice, a responding affidavit and preparing his client and himself for the hearing. The mother did not challenge the father's lawyer's rates or time spent on the motion in her costs submissions.
[41] The father claimed no expenses.
[42] The mother has the ability to pay the costs ordered. She earns a good income and owns a valuable property that she rents.
Part Six – The Order
[43] Taking into consideration all of these factors, the mother shall pay the father's costs of the motion, fixed in the sum of $5,800, inclusive of fees, disbursements and H.S.T. The costs shall be paid within 30 days.
Justice S.B. Sherr
Released: February 19, 2014
Footnotes
[1] The mother was assisted by duty counsel at this appearance.
[2] This order was made pursuant to paragraph 3 of subrule 14 (17) of the Family Law Rules.
[3] This became apparent when the interpreter was subsequently asked to play the beginning of the audiotape in court.
[4] The father paid $1,800 for the mother and child's passports.
[5] This is not intended as a criticism of mother's counsel who does not speak Farsi and understandably relied on the mother's position of what the audible portion of the audiotape said.