Superior Court of Justice - Ontario
RE: Atallah Daher, Applicant AND Dania Khanafer, Respondent
BEFORE: Madam Justice J. Mackinnon
COUNSEL: Atallah Daher, Self-represented Katherine A. Cooligan, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
1Both parties seek full recovery costs for this 10 day trial. The applicant Father asks for $203,000 including $9,000 in costs previously awarded to him on a motion. The respondent Mother asks for $242,099 after deducting that $9,000. Both parties agree that the case was complex and important to themselves and to their young son.
2Many of the applicant’s submissions on costs simply re-argue unsuccessful positions he took at trial. These need not be addressed here. Oddly, while he opened at trial seeking sole custody and primary residence of the child with himself in Spain, he described himself as the more successful party where the outcome was an award of sole custody to the Mother, primary residence to her in Ottawa, and supervised access to the Father, in Ottawa. The requirement of full supervision and the restriction against any overnight access were subject to a review clause, on specified conditions being met by him.
3The applicant’s claim for sole custody, primary residence, and his alternative claim for joint custody, were untenable and ought not to have proceeded to trial. The trial should have been short, focused on access only.
4The Mother is clearly the more successful party. She was not entirely successful and did not match her offer on issues of his income determination, child support and section 7 expenses.
5My reasons for decision include numerous adverse findings against the applicant. Amongst these, I found that his theory that the Mother had attempted to marginalize him as a parent “flies in the face of reality”. I found his testimony to be “unreliable to the point of untrustworthiness”. I found other aspects of his testimony brought “new meaning to the word disingenuous.” I also found that he was motivated to punish the Mother and would depart from the truth to do so.
6A review of the offers exchanged does not change these conclusions. The offers did overlap in several respects, but overall the mother’s offers were more reasonable and closer to the trial outcome than were the Father’s. His assertion that 70 percent of the terms of the final order matched or were more favourably to him than the terms in his offers is simply inaccurate.
7His most recent offer was more reasonable than his prior ones. However, even had he proceeded to trial claiming the relief he proposed in that offer, he did not obtain it at trial. And, his settlement proposals were not what he claimed at trial. He proceeded to trial seeking untenable relief which he did not obtain.
8There was bad faith on the part of the applicant in many of the steps he took prior to commencement of this action. Bad faith during the litigation included his continuing to refer to the allegations of sexual misconduct by the respondent without tendering the proof he said he had. If he did not intend to attempt to prove these allegations he should have withdrawn them.
9In terms of factoring bad faith into the award of costs in this case I adopt the approach taken by Perkins J. in C.S. v. M.S. , 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164. Full recovery costs are to be awarded in relation to the issues affected by bad faith, so long as the costs were reasonably incurred and are reasonably proportional to the issues. Then, the “whole picture should be looked at again” in light of FLRs r 24(11) and the judicial discretion exercised to produce the overall correct result.
10Accordingly in this case the Mother is not entitled to full recovery costs equal to 100 percent of her Bill of Costs as asked.
11I do note that the father’s claim for $203,000 compares closely to the Mother’s substantial indemnity claim which was for $204, 039. This is important in considering the test that an award of costs should be reasonable and within the contemplation of the unsuccessful party. See Boucher et al. v. Public Accountants, 2004 CanLii 14579 (C.A.).
12The Father is entitled to have the sum of $9,000 previously awarded to him deducted from the costs awarded to the Mother. I have also reviewed her Bill of Costs and made some reductions to the time spent by clerks and a law student.
13In the result I fix the respondent’s costs at $200,000 all inclusive. In my view this amount adequately reflects the outcome of the case, the litigation conduct of the father, his bad faith in connection to a central issue at the trial, and the other objectives of the Family Law Rules with respect to an award of costs.
Madam Justice J. Mackinnon
Date: December 7, 2016
CITATION: Daher v. Khanafer, 2016 ONSC 7666
COURT FILE NO.: FC-15-774
DATE: 2016/12/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Atallah Daher, Applicant AND Dania Khanafer, Respondent
BEFORE: Madam Justice J. Mackinnon
COUNSEL: Atallah Daher, Self-represented Katherine A. Cooligan, for the Respondent
ENDORSEMENT
J. Mackinnon J.
Released: December 7, 2016