Court File and Parties

Date: August 31, 2022 Court File No.: D90990/16

ONTARIO COURT OF JUSTICE

B E T W E E N:

EVAN ALI ACTING IN PERSON APPLICANT

- and -

FARDOUSARA SYEDA LABONI GLENDA PERRY, for the RESPONDENT RESPONDENT

HEARD: AUGUST 2, 2022

JUSTICE S.B. SHERR

Costs Endorsement

Part One – Introduction

[1] Mr. Ali brought a motion to change the support and parenting terms contained in the court’s order dated October 14, 2020 (the existing order). Ms. Laboni brought her own motion to change the parenting terms in that order.

[2] On March 28, 2022, the court organized a focused hearing of Mr. Ali’s motion to change the existing child support order. Mr. Ali was ordered to serve and file within 30 days, an updated financial statement, a copy of his 2021 income tax return with all attachments, documentary proof of his income and business expenses in 2022 and any medical report he intended to rely upon at the hearing.

[3] The motions to change the existing parenting order were adjourned until August 2, 2022 for a case conference. [1]

[4] Mr. Ali did not serve or file any of the disclosure ordered regarding his motion to change child support.

[5] Mr. Ali also did not attend at the focused hearing. The court dismissed his motion to change the existing support order.

[6] The court found that Ms. Laboni was entitled to her costs. It permitted her to make written submissions and set filing timelines. Ms. Laboni made her written submissions and seeks her costs of $6,977.75.

[7] Mr. Ali did not file any written costs submissions.

[8] On the return date to address the parenting issues, the court gave Mr. Ali the option of an extension of time to make his written costs submissions or to give them orally that day. He chose to make oral submissions. He proposed paying $500 for costs. He submitted that was all he could afford.

Part Two – Legal considerations

[9] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants and;

(4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[10] Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.

[11] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[12] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

[13] Subrule 24 (12) reads as follows:

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.

[14] The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v Slongo, 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.

[15] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

[16] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

Part Three – Analysis

[17] This case was important to the parties. It was not complex or difficult.

[18] Ms. Laboni acted reasonably in this case. Although she did not make an offer to settle pursuant to subrule 18 (4), she proposed on May 25, 2022 to have the child support issue resolved by Mr. Ali withdrawing that portion of his motion to change.

[19] Mr. Ali acted unreasonably regarding the support issues. He did not comply with any aspect of the court’s disclosure order made on March 28, 2022. He is self-employed and the disclosure ordered was vital to a proper assessment of his claim. Mr. Ali also acted unreasonably by not attending at the focused hearing.

[20] Mr. Ali submitted that he did not attend the hearing because he was sick with COVID-19. He provided no evidence of this. The court may have been more sympathetic to him if he had made any effort to comply with the court’s disclosure order or if he had contacted Ms. Laboni’s counsel either before or after the hearing to explain his circumstances. He did none of this.

[21] Although Mr. Ali acted unreasonably, the court does not find that his conduct rose to the level of bad faith, as alleged by Ms. Laboni, that would attract full recovery costs pursuant to subrule 24 (8).

[22] Mr. Ali subsequently acted reasonably in resolving the parenting issues.

[23] The rates claimed by Ms. Laboni’s counsel of $475 per hour are reasonable for a 1992 call to the bar.

[24] The focused hearing was set for a half-day. Ms. Laboni was not required to provide a trial affidavit. The focus of the hearing was going to be on Mr. Ali’s income. The time claimed by the mother is high.

[25] The court considered Mr. Ali’s financial circumstances. He is of modest means. The court will address any hardship to Mr. Ali, by permitting him to pay an affordable amount of costs over a reasonable amount of time.

[26] Mr. Ali should have reasonably expected to pay the costs that will be ordered. Ms. Laboni’s May 25, 2022 offer to Mr. Ali indicated that she would be seeking costs of $6,000 if the matter proceeded to trial. It also alerted him to his failure to comply with the court’s disclosure order.

[27] The court finds that it is reasonable and proportionate in these circumstances that Mr. Ali pay Ms. Laboni’s costs in the amount of $3,600, inclusive of fees, disbursements and HST.

Part Four – Order

[28] An order shall go on the following terms:

a) Mr. Ali shall pay Ms. Laboni’s costs in the amount of $3,600, inclusive of fees, disbursements and HST.

b) Mr. Laboni may pay the costs at the rate of $200 each month, starting on October 1, 2022. However, if he is more than 30 days late in making any costs payment, the full amount of costs then owing shall immediately become due and payable.

Released: August 31, 2022 _____________________ Justice S.B. Sherr

[1] The parenting issues were resolved on a final basis, on consent, by order dated August 30, 2022.