CITATION: Farahani v. Farahani, 2017 ONSC 1211
COURT FILE NO.: FC-13-407 DATE: 2017/03/02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Alaina Elizabeth Woolfrey (Farahani) Applicant
– and –
Ali Farahani Respondent
Ms. O. Eskicioglu, counsel for the Applicant
Mr. W. L. Smith, counsel for the Respondent
HEARD: June 21, 2016
cost decisions
kane j.
[1] The parties seek costs in relation to the decision of this court dated June 21, 2016 (“June 21 Decision”) and the decision of McLean J. dated June 6, 2016 (“June 6 Decision”).
[2] The applicant mother as to the June 6 Decision and the June 21 Decision, seeks:
(a) costs of $8,417.88 on a scale of full recovery basis; or
(b) in the alternative, costs of $6,791.47 on a substantial indemnity scale.
[3] The applicant mother seeks such costs on the basis that:
(a) she successfully obtained an interim order of child support of $724 per month, retroactive to June 1, 2016;
(b) she successfully obtained a dismissal of the respondent father’s motion for contempt and to vary time sharing of the child to alternate weeks rather than the existing schedule of 2 or 3 days with each parent;
(c) given the above outcome, the applicant is presumptively entitled to costs of the motion pursuant to sub-rule 24(1) of the Family Law Rules (“FLR”); and
(d) the respondent father acted in bad faith is seeking contempt on June 6 and 21 as:
(i) he had no genuine interest in proceeding to mediation as demonstrated by his refusal to accept several prior offers of the mother to do so and instead sought a contempt order;
(ii) he acted unreasonably in rejecting the mother’s offers to proceed to mediation prior to the motion resulting in the June 6 Decision, by attempting to amend the ordered mediation into mediation/arbitration and in neglecting to pay child support he knew was owing and forcing the mother to pursue that remedy by court motion;
thereby entitling her to costs on a full recovery scale pursuant to FLR sub-rule 24(8).
[4] The respondent seeks his actual costs of $3,754 for work performed up to the June 6 Decision where he obtained an order the mother was in contempt of their November 26, 2015 final order (“Consent Order”) which required they attend before the named mediator regarding the parenting schedule, child support and other issues. The respondent father acknowledges the mother was successful in the June 21 Decision and submits that her costs thereof be limited to 1/3rd of the amount claimed and be set at $1,200.
WRITTEN SETTLEMENT OFFERS
[5] Numerous written offers of settlement have been filed dated prior to the decisions being considered.
[6] The mother on April 7, 2016 replied to the father’s motion that she be held in contempt for her refusal to attend mediation before the named mediator, with her alternate offers that had the parties attending mediation before:
(a) Ms. Rupert with the respondent paying the costs thereof and the mother’s 50% share thereof being credited to the father as to his liability under the Consent Order; or
(b) using an alternate mediation service with no associated costs.
[7] The mother repeated the above proposal on April 22 and again on May 9, 2016 with no costs implications if accepted by May 10, 2016.
[8] The respondent father’s reply to the above offers of mediation was his offer dated May 31, 2016. It provides that his motion for contempt effectively would be withdrawn without costs if the mother waived any claim for child support and accepted specified time sharing terms during the summer months, the Christmas/New Year period and March break. The mother was a university student at the time which guaranteed she would not accept this offer.
[9] The mother on June 6, 2016 served a further offer to settle the contempt motion before McLean J. It repeats the two above alternatives to mediation, adds a third alternate mode of mediation, namely one day of mediation funded by the Ministry of the Attorney General plus interim without prejudice monthly child support of $988, or an adjournment of the motion with all matters to be dealt with in mediation. Child support was not dealt with in the June 6, 2016 Decision.
[10] The above offers by the applicant to mediate undermine the purpose for the June 6 motion for contempt. While accepting that order was not appealed, the applicant’s offers of mediation undermine the justification of the June 6, 2016 motion and Decision.
[11] No offers of settlement are disclosed as to the motion resulting in the June 21, 2016 Decision.
ANALYSIS
[12] For the above reasons related to the applicant’s offers of mediation, the respondent acted unreasonably and is not entitled to costs related to the June 6, 2016 Decision, including pursuant to the FLR 24(4) and (5). That leaves the issue of the applicant’s cost claim.
[13] The applicant’s mediation offers eliminated the necessity for the motion resulting in the June 6, 2016 Decision and entitle her to costs on a substantial indemnity scale to June 6, 2016 pursuant to R. 49.10 of the Rules of Civil Procedure.
[14] There is an element of bad faith by the respondent in that the justification for his contempt motion was to implement mediation as required in the Consent Order. When given that opportunity as evidenced in the applicant’s offers he failed to accept to mediate and preferred instead a contempt finding on two occasions despite the cost implications and leaving unresolved the material issues between the parties.
[15] The respondent mistakenly continued to pursue contempt after the June 6 Decision even though his real issue on June 21 sought a change to week about access.
[16] The issues I have with the applicant’s cost claims are:
(a) she made no offer to settle after the June 6, 2016 Decision;
(b) she obtained a lower amount of interim monthly child support than requested;
(c) the dates and corresponding time expended are not contained in her cost outline; and
(d) the costs claimed include an hourly rate for a legal assistant, which is normally an overhead costs factored into a lawyer’s hourly charge.
CONCLUSION
[17] Balancing the above factors, including the offers and the relief sought and obtained, the applicant is awarded costs on a scale of substantial indemnity in the amount of $6,200, payable within 30 days.
Kane, J.
Released: 2017/03/02
CITATION: Farahani v. Farahani, 2017 ONSC 1211
COURT FILE NO.: FC-13-407
DATE: 2017/03/02
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Alaina Elizabeth Woolfrey (Farahani) Applicant
– and –
Ali Farahani Respondent
cost decisions
Kane J.
KANE, J.
Released: March 2, 2017