SUPERIOR COURT OF JUSTICE
Court File No.: FC-12-2265
Date: 2013/12/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEYED ADNAN TALAGHANI
Applicant
– and –
TAHANI SOBOH
Respondent
Michael Wonham, counsel for the Applicant
Odette Rwigamba, counsel for the Respondent
HEARD: October 23rd, 2013
ruling on issue of costs
LALIBERTE, J.
iNTRODUCTION
[1] On October 29th, 2013, the Court ruled on a motion to determine which temporary parental arrangement was in the parties’ young child’s best interests. The parties were invited to resolve the issue of costs between themselves. They were unable to do so and are asking the Court to decide the issue of costs. Written submissions were filed by the litigants on November 22nd, 2013.
[2] In her submissions, the Respondent is seeking an award for costs on a substantial indemnity basis in the amount of $6,679.28. Her counsel has filed a bill of costs setting out the particulars in support of her claim.
[3] The Applicant’s view is that no costs should be awarded. In the alternative, his position is that any costs award made against him should be offset against funds he claims that the Respondent liquidated from a joint account. In the further alternative, costs should be paid in the cause.
[4] The issues for this Court are:
Who is liable for costs?
What is the quantum of liability, if any?
THE LAW
[5] A proper determination of costs in family law proceedings requires the Court to reflect on a myriad of factors. It is more than a simple mathematical or mechanical exercise. (Boucher et al v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ontario Court of Appeal). As stated by the Ontario Court of Appeal in Somers v. Fournier 2002 45001 (ON CA), [2002] O.J. No. 2543 at paragraph 17:
“Thus, costs are both a discretionary indemnification device and a mechanism by which abuses of the Court’s processes may be deterred and penalized. Costs are routinely used by Ontario Courts to reward or sanction the conduct of parties prior to and during the litigation process…”
[6] The fundamental purposes of costs rules have been identified as follows:
To partially indemnify successful litigants for the cost of litigation;
To encourage settlement;
To discourage and sanction inappropriate behaviour by litigants.
Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 (Ontario Court of Appeal)
[7] The Court is bound to consider the framework set out in the Family Law Rules. While our Court of Appeal in C.A.M. v. D.M. 2003 18880 (ON CA), [2003] O.J. No. 3707 confirms a degree of discretion, “…It is apparent that the Family Law Rules have circumscribed the broad discretion…” which is granted to Judge’s under section 131(1) of the Courts of Justice Act.
[8] The Family Law Rules which are relevant to this matter are as follows:
Rule 2:
Court is required to apply rules to promote the primary objective which is to deal with cases justly
Parties and lawyers are required to help the Court promote this objective
Rule 18:
- The ramification of offers to settle made by a party
Rule 24:
24(1): The successful party is presumed entitled to costs.
24(2): The presumption of entitlement based on success may be rebutted if successful party acted unreasonably.
24(3): In deciding if a party acted unreasonably, Court considers:
➢ Behaviour in relation to issues from the time arose, including whether an offer to settle was made;
➢ Reasonableness of offer made;
➢ Any offer party withdrew or refused.
24(6): Costs may be apportioned in accordance with success.
24(8): Consequences of a party acting in bad faith.
24(11): In setting the amount of costs to be paid by the party who is found to be liable, the Court must consider:
➢ The importance, complexity or difficulty of the issues;
➢ The reasonableness or unreasonableness of party’s behaviour;
➢ The lawyers’ rates;
➢ The time properly spent on the case;
➢ Expenses properly paid or payable;
➢ Any other relevant matter.
DISCUSSION
A) Who is liable for costs?
[9] The Respondent submits that she should be awarded costs. Her position is based on the following:
− She is the successful party on issues of custody, access, appointment of the Children’s Lawyer, child support and financial disclosure;
− The result exceeds mutual offers to settle;
− The Applicant’s unreasonable behaviour in requesting joint custody and continued access in light of allegations of sexual abuse at the hands of the paternal grandfather;
− She suggests that the Applicant acted in bad faith.
[10] The Applicant argues that both parties shared success on a number of corollary issues. Specifically, he refers to the following:
− He was awarded overnight access and an increase in access;
− The Respondent being compelled to provide him with information pertaining to the child and seek/consider his input before making decisions involving their daughter.
[11] On balance, the Court is of the view that the Respondent mother is the successful party in this motion. However, the Court does not share her position in regards to the extent of her success.
[12] As noted by the Court in its ruling at paragraph 8:
“…the Court is provided with limited, contradictory and untested information upon which to base such an important decision. The reality is that the Court is unable to make findings of facts with respect to the serious allegations raised in this motion by both parties.”
[13] At paragraph 10 of the said ruling, the Court comes to the following conclusion:
“Depending on whose version one looks at, this young child has either witnessed her mother being physically abused or has herself been subjected to sexual abuse or all of these allegations are untrue and the child has been subjected to a systematic campaign of parental alienation at the hands of her mother. Either way, Hawra is being victimized and harmed.”
[14] It is impossible for this Court to decide who is acting reasonably in these proceedings. If the child is being sexually abused by her paternal grandfather then the Respondent mother is acting reasonably and the Applicant father is not. If the child is not being sexually abused but is subject of an attempt by the Respondent mother to frustrate the Applicant father’s relationship with his daughter, then the unreasonableness follows the culpable parent.
[15] In the end, the Court is not in a position to base an award for costs on the basis of “unreasonableness” and “bad faith” in the context of such uncertainties.
[16] The Court is also mindful that both parties attempted to resolve issues by way of offers to settle. It is noted that many of the issues were in fact resolved by the parties through Minutes of Settlement which were filed with the Court on the day of the hearing on October 23rd, 2013.
[17] In the final analysis, the Respondent is seen as the substantial successful party based on the following considerations:
− She was granted temporary custody of the child;
− Conditions were placed on access to ensure the child’s safety;
− Request for the Ontario Children’s Lawyer was granted;
− She was granted authorization to make final decisions relating to the child;
− The Applicant is compelled to disclosure financial information.
[18] The Respondent’s success is mitigated by the Applicant being granted the following:
− Access to his child which had been denied by the Respondent for a number of weeks;
− The entitlement to information concerning his daughter;
− The entitlement to express his views and for same to be considered on important questions relating to his daughter.
B) How much should the Applicant pay?
[19] The Applicant argues that if the Court finds in favour of the Respondent, the award should be set-off against monies allegedly taken by the Respondent from a joint bank account. The Court rejects this argument. This would require a finding of fact and the Court is not in a position to come to any finding as to whether or not the Respondent did in fact withdraw the funds.
[20] The Court also dismisses the Applicant’s request that costs for this motion be suspended pending completion of these proceedings. Rule 24(10) of the Family Law Rules provides that costs issues shall be decided by the Court at each step.
[21] As stated by the Ontario Court of Appeal in Serra v. Serra op cit, an award for costs should reflect what the Court views is a fair and reasonable amount that should be paid by the unsuccessful party. In arriving at an amount in this case, the Court has considered the following:
− Custody and access of this child was an important issue;
− Custody and access of this child became a complex issue because of the allegations of both parties;
− The Court’s inability to decide on the issue of which party is acting reasonably;
− The fact that the Applicant had some success;
− The Applicant’s means to pay costs;
− The Respondent’s bill of costs appears excessive in the circumstances.
[22] The Court finds that a fair and reasonable amount is $2,500.00.
CONCLUSION
[23] The Court orders that the Applicant pay the Respondent costs in the amount of $2,500.00 (all inclusive) and that this is to be paid on or before February 15th, 2014.
Justice Ronald M. Laliberte Jr.
Released: December 11th, 2013
COURT FILE NO.: FC-12-2265
DATE: 2013/12/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEYED ADNAN TALAGHANI
Applicant
– and –
TAHANI SOBOH
Respondent
RULING ON ISSUE OF COSTS
Justice Ronald M. Laliberte Jr.
Released: December 11th, 2013