Kasssam v. Kassam, 2025 ONCJ 12
DATE: January 9, 2025
COURT FILE NO.: D41369/21
ONTARIO COURT OF JUSTICE
B E T W E E N:
Samira Kasssam
Areesha Zubair, for the APPLICANT
APPLICANT
- and -
Steven Kassam
ACTING IN PERSON
RESPONDENT
HEARD: In Chambers
JUSTICE: Stanley B. Sherr
COSTS ENDORSEMENT
Part One – Introduction
[1] On September 19, 2024, the respondent (the father) withdrew his motion to change the child support terms contained in a separation agreement dated July 25, 2020. The separation agreement had been filed with this court pursuant to section 35 of the Family Law Act on March 29, 2021.
[2] The applicant (the mother) seeks her full recovery costs of $8,690. She asks that the costs be enforceable as support by the Director of the Family Responsibility Office.
[3] The father asks that no costs be ordered.
Part Two – Entitlement to costs
[4] Subrule 12 (3) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules) reads as follows:
Costs payable on withdrawal
(3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise.
[5] Subrule 12(3) also applies to the withdrawal of a motion. See: Murphy v. Murphy, 2010 ONSC 6204; Stamenga v. Ouellet, 2024 ONSC 6530; Altman v. Altman, 2024 ONSC 4533.
[6] 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:
a) to partially indemnify successful litigants;
b) to encourage settlement;
c) to discourage and sanction inappropriate behaviour by litigants; and
d) to ensure that cases are dealt with justly under subrule 2 (2).
[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[8] 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.
[9] Subrule 12 (3) creates a presumption that the withdrawing party must pay the costs of the other party. It is a rebuttable presumption. See: B.L. v. M.L.; Davidson v. Ferrill, 2006 ONCJ 472.
[10] The father provided no basis to rebut the costs presumption in subrule 12 (3). He initiated the court proceeding. He did not withdraw it until the first case conference. The mother was put to the cost of preparing her response to motion to change and case conference materials. Her counsel was required to prepare for and attend the case conference.
[11] The mother is entitled to costs.
Part Three – Bad faith
[12] The mother alleges that the father acted in bad faith and seeks full recovery costs against him.
[13] Subrule 24 (8) 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.
[14] 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).
[15] 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.), 38 R.F.L. (6th) 315 (Ont. SCJ).
[16] 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.
[17] The mother did not come close to establishing that the father acted in bad faith.
[18] The father advised the court that he was withdrawing his motion to change because he planned to move in the Superior Court of Justice to set aside the entire separation agreement, including its property terms. The father was assisted by duty counsel at that appearance. This was a legal choice, not bad faith.
Part Four – Amount of costs
4.1 Legal considerations
[19] 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:
b) each party’s behaviour,
c) the time spent by each party,
d) any written offers to settle including offers that do not meet the requirements of rule 18,
e) any legal fees, including the number of lawyers and their rates,
f) any expert witness fees, including the number of experts and their rates,
g) any other expenses properly paid or payable; and
h) any other relevant matter.
[20] In Altman, supra, at paragraph 41, the court noted that many courts have found that a higher scale of costs may be appropriate where motions are abandoned.
[21] The court should take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but are not always a reason to deprive a successful party of costs or to reduce the amount of costs.
[22] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485.
[23] 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.
4.2 Analysis
[24] This case was important to the parties. It was not complex or difficult.
[25] The mother acted reasonably.
[26] The father delayed until the case conference to withdraw his claim. He put the mother to the cost of defending his claim and preparing for the case conference. That was not reasonable.
[27] The court extended the time for costs submissions. It endorsed on September 19, 2024, that if the father followed through on his intention to bring an application in the Superior Court of Justice, some of the mother’s costs would be transferrable to that case. This would reduce the father’s costs liability in this case. The father has not made that application.
[28] The fees claimed by the mother are excessive. She prepared a simple response to motion to change, financial statement and case conference brief. Her counsel sought one adjournment that the father reasonably agreed to. Her counsel had to prepare for one case conference and make one court appearance.
[29] The court considered that the father has limited financial circumstances.
[30] The father should have reasonably expected to pay the level of costs that will be ordered.
[31] The court will order the father to pay $4,000 for the mother’s costs, inclusive of fees, disbursements and HST.
[32] Any hardship to the father can be addressed through a payment order. The court will permit the father to pay the arrears at the rate of $200 each month, starting on February 1, 2025, provided that he maintains the costs payments in good standing.
Part Five – Request for enforcement by the Director of the Family Responsibility Office
[33] The mother asks that the entire amount of costs be payable as support and enforced as an incident of support by the Director of the Family Responsibility Office pursuant to clause 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act.
[34] The court has discretion to allocate what portion of the costs are attributable to support, particularly when there are multiple issues being litigated. See: Sordi v. Sordi, 2011 ONCA 6.
[35] Here, the entire case was about support. The court will make the order sought by the mother.
Part Six – Conclusion
[36] A final costs order shall go as follows:
a) The father shall pay the mother her costs fixed at $4,000, inclusive of fees, disbursements and HST.
b) The father may pay the arrears at the rate of $200 each month, starting on February 1, 2025. However, if he is more than 30 days late in making any costs payment, the full amount then owing shall immediately become due and payable.
c) Pursuant to clause 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, this costs award shall be payable as support and enforced as an incident of support by the Director of the Family Responsibility Office.
Released: January 9, 2025
Justice Stanley B. Sherr