Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 04 30 COURT FILE No.: Sudbury FO-23-00000081-0000

BETWEEN:

NASYA PETERS Applicant

— AND —

MOHAMMAD RAHBAR Respondent

Before: Justice G. Jenner

Heard: In writing Released on: April 30, 2024

Counsel: Nasya Peters acting on her own behalf Zachary Liquornik..................................................................... counsel for the respondent

JENNER J.:

COSTS ENDORSEMENT

Part One – Introduction and Positions of the Parties

[1] On April 12, 2024, the court heard and granted the respondent’s motion for summary judgment, dismissing the applicant’s claims in their entirety. The court asked the parties to address the issue of costs in writing. Both parties have filed costs submissions.

[2] The respondent seeks costs on a full recovery basis. He submits that he was entirely successful and is presumptively entitled to his costs. He argues that the applicant behaved aggressively and unreasonably, and that her actions rise to the level of bad faith. He has filed an offer to settle which he made and which he submits is in accordance with r. 18 of the Family Law Rules. He includes a bill of costs totaling $23,730 in fees and disbursements, inclusive of HST. His counsel’s hourly rate is $300 and his counsel’s year of call is 2020.

[3] The applicant’s costs submissions came to the court in the form of her affidavit dated April 25, 2024. She states that the respondent was dishonest when he submitted his financial statement to the court. She accuses him of bad faith, accuses the court staff of altering the dates on filed documents, and suggests that the respondent has paid people to provide affidavits. She appends several documents to her affidavit. Some of those documents are offered in a clear attempt to relitigate issues previously determined by the court. Others are of no relevance that I was able to discern.

Part Two – General Legal Framework

[4] Rule 24 of the Family Law Rules establishes the framework for awarding costs for family law cases in this court. The elements of that framework which are germane to this matter are as follows:

Costs Successful party presumed entitled to costs

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

Successful party who has behaved unreasonably

(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.

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

Absent or unprepared party

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

Bad faith

(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.

Deciding costs

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case.

Same

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.

Setting costs amounts

(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,

(b) any other relevant matter.

[5] This framework must be read in conjunction with r. 18(14)-(16) with respect to the costs consequences of failure to accept an offer to settle.

[6] In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal for Ontario articulated that modern costs rules are designed in furtherance of four fundamental principles:

(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 (pursuant to rule 2(2) of the Family Law Rules).

Part Three: Legal Issues

[7] In applying the above framework to this matter, the following issues must be considered:

(1) Is the respondent a successful party?

(2) What is the impact of the offer to settle?

(3) What is the impact of the applicant’s conduct, and has the applicant acted in bad faith?

(4) Has the respondent himself behaved unreasonably?

(5) What amount of costs is appropriate?

3.1 Is the respondent a successful party?

[8] The respondent was clearly the successful party within the meaning of r. 24(1). His summary judgment motion was granted, resulting in the dismissal of the applicant’s entire claim. He is presumed to be entitled to the costs of the motion and the proceeding.

3.2 The offer to settle

[9] The respondent’s offer to settle dated March 20, 2024 complies with most of the requirements of r. 18 and subrule (14) in particular. It was signed by both the respondent and counsel, was not improperly disclosed to the court, was made well in advance of the motion date, did not expire before the motion was to be argued, and was not accepted by the applicant.

[10] The respondent did not, however, obtain an order that was as favourable or more favourable than the offer. Specifically, the offer to settle included a condition that the applicant be restricted from commencing any further family court litigation against the respondent without leave. The respondent obtained no such condition on the contested motion, and therefore he does not satisfy the strictures of r. 18(14).

[11] Nonetheless, the offer to settle should carry significant weight in the assessment of costs, both as an enumerated factor under r. 24(12)(a)(iii) and in the light of the emphasis that the modern costs rules place on encouraging settlement. The offer to settle was reasonable, timely, and differs from the ultimate outcome only with respect to ancillary relief and not the substantive rights at issue.

3.3 The applicant’s conduct

[12] The respondent submits that the applicant acted in bad faith by commencing this proceeding in the first place. He argues that it was clear beyond any doubt that the applicant was not entitled to the relief sought. He contends that the proceeding was commenced for nefarious purposes, furthering an established pattern of the applicant’s stalking and harassing the respondent.

[13] If the applicant has acted in bad faith, then costs must be assessed on a full recovery basis and be made payable immediately: r. 24(8).

[14] The threshold for a finding of bad faith was recently explored in detail by Justice S.B. Sherr in Kumar v. Nash, 2024 ONCJ 16, at paras. 13-15:

Subrule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).

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.) (2007), 38 R.F.L. (6th) 315 (Ont. SCJ); Stewart v. McKeown, 2012 ONCJ 644.

Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.

[15] The court must also be mindful that bad faith on one issue, or one step in the litigation, does not necessarily justify full recovery costs across all issues and steps. See Kumar v. Nash, 2024 ONCJ 16, at para. 19.

[16] Applying that framework to the present case, I am satisfied that the applicant has acted in bad faith. I agree with the respondent that the applicant’s claim to force the respondent to exercise parenting time was clearly meritless. That alone does not ground a finding of bad faith. The pursuit of frivolous claims can be the result of negligence and poor judgment. And the applicant’s claim for child support, while ultimately unsuccessful, was not inarguable. In this case, however, I find that the applicant was engaged in a duplicitous campaign of harassment to which her pursuit of legal relief was secondary.

[17] In her correspondences with the respondent’s family, friends, and legal counsel, the applicant regularly implied or explicitly accused the respondent of child endangerment, pedophilia, sexual assault, incest, child molestation, and human trafficking. She accuses him of attempting to kidnap the children and remove them to another country. She labels him a “monster”, with no heart and an evil soul. Her attacks resort to racism, xenophobia, and homophobia. [1] Despite these vile and unsubstantiated accusations, her application sought to grant the respondent unsupervised parenting time with her children.

[18] The applicant’s baseless attacks were also not limited to the respondent. She ultimately began to target the respondent’s legal counsel. She accused him of stalking and harassing her. She refers to him as a pervert. Her communications are vulgar and explicitly homophobic. On one occasion, the applicant stated in an email to the respondent’s counsel that that settlement of the family litigation would be contingent on the respondent withdrawing criminal charges that the applicant was facing. [2]

[19] Attacks on opposing counsel were the subject of a bad faith finding in Kumar v. Nash, 2024 ONCJ 16, and the court’s comments at paras. 24-27 are apt:

Malicious attacks of this nature on justice participants without an evidentiary foundation cannot be condoned by the court. They undermine the integrity of and respect for the administration of justice. Serious costs consequences should follow when a litigant chooses this path.

Practising family law is challenging work for lawyers. Counsel are expected to have thick skins. However, no lawyer should be subjected to the type of attacks the father has made against the mother’s counsel in this case. The father has crossed the line – by a wide margin. The court shares Justice Kristjanson’s concern, expressed in E.K.B., that allegations such as these may have a chilling effect on lawyers who seek to provide access to justice for vulnerable litigants.

It is incumbent upon courts to protect counsel in these circumstances and subrule 24(8) provides the court with a mechanism to do so.

[20] The applicant’s personal attacks on the opposing party and his counsel are unsubstantiated and laced with vile racist and homophobic language. They must be met with firm condemnation from the court. The applicant’s attacks were most sharply focused on the motion for summary judgment, but in my view permeate the conduct of the entire proceedings. The bad faith finding will therefore apply broadly to the litigation.

3.4 The respondent’s conduct

[21] There is no evidence before the court to suggest that the respondent has conducted himself unreasonably or to support the applicant’s more serious claims that the court and the respondent have doctored documents or bribed affiants to provide evidence.

3.5 Amount of costs

[22] Having determined that the applicant has acted in bad faith, and that the finding should apply to the litigation broadly, the corresponding costs must be decided on a full recovery basis. The recovery of the full amount of costs claimed does not follow automatically. The court must still screen against any unreasonable or disproportionate claims: Kumar v. Nash, 2024 ONCJ 16, at para. 29, Jackson v. Mayerle, 2016 ONSC 1556.

[23] I have reviewed the respondent’s detailed bill of costs. While I appreciate the need to respond thoroughly and forcefully to the applicant’s claims, and the added toll that the applicant’s personal attacks would cause, I am not persuaded that the time spent, 70 hours, is proportionate to the complexity of the litigation.

[24] The court will fix the costs at $13,560, representative of 40 hours of billable time at counsel’s rate, inclusive of HST, due and payable immediately.

Part Four – The Order

[25] A final order shall go as follows:

The applicant shall pay the respondent his costs fixed at $13,560, inclusive of fees, disbursements and HST. The costs are due and payable immediately.

Released: April 30, 2024 Signed: Justice G. Jenner

Footnotes:

[1] See Affidavit of the respondent, Mohammad Rahbar dated March 19, 2024, including exhibits, Tab 15 of Continuing Record.

[2] Affidavit of the respondent, Mohammad Rahbar dated March 19, 2024, including exhibits, Tab 15 of Continuing Record. Exhibits to the respondent’s affidavit include documents from the York Regional Police related to charges of criminal harassment on the part of the applicant victimizing the respondent. The court was advised that these charges had been withdrawn following the applicant’s completion of a course of counseling, but that new similar charges have been laid. I have not found it necessary to come to a determination on the charges and have not placed any weight on them with respect to the applicant’s conduct, preferring to limit my assessment to the conduct of this litigation.

Peters v. Rahbar, 2024 ONCJ 213

Case Summary