Court File and Parties

Court File No.: FD1712/08 Date: 2017/01/19 Superior Court of Justice – Ontario

Re: Berit Strasser Diaw (Applicant) And: Alex Abdou Diaw (Respondent)

Before: Justice J.N. Morissette

Counsel: Norman Pizzale, for the applicant Alex Abdou Diaw, self-represented

Heard: By written submissions

Endorsement on Costs

[1] The applicant seeks costs in the amount of $20,000 all inclusive. The respondent asks this court not to award any costs to either party.

[2] Although I dismissed both motions, the major issue before this court was whether or not the respondent had fulfilled his obligations under the Minutes of Settlement in order to obtain enlarged access. He was unsuccessful in that regard.

[3] The applicant had no choice but to defend his motion in order to ensure the best interest of the children. Accordingly, the conduct and position of Mr. Diaw was the effective cause of this litigation.

[4] It is very difficult to quarrel with Mr. Pizzale’s submission that his client achieved success in defending his motion. The fact that this court chose not to reduce the access to the respondent, is not demonstrative of success on behalf of Mr. Diaw, but rather an attempt to ensure that the schedule that the girls have been accustomed to, be maintained in order to allow for more stability.

[5] It is noteworthy, that following the week in July when Mr. Diaw kept the children for one week contrary to the Court order, the applicant made repeated efforts to permit Mr. Diaw to have continued alternate weekend access conditional upon him confirming in writing that the children would be returned on Sunday evening. Had Mr. Diaw accepted that offer, the hearing of September 14, 2016 could have been avoided or at the very least greatly abbreviated.

[6] With respect to his ability to pay costs, it is difficult to ascertain his income because no income tax returns have been filed. His testimony at trial was vague at best as to his earnings. As indicated in my reasons, his credibility was lacking as demonstrated from his evidence that he did not know of Sophia’s choir, contrary to the reliable evidence showing otherwise. In addition he assured this court that he had possession of a document that authorized him to keep the girls for that week in July, when in fact he was never able to produce this document. Accordingly, it may be that he is impecunious, but this court is unable to satisfy itself of that notion. Mr. Diaw has failed to pay any child support for the girls since 2011, notwithstanding his agreement that he would “voluntarily” pay child support.

[7] Pursuant to Rule 24 of the Family Law Rules, O.Reg. 114/99, the applicant is entitled to some costs. Although judges exercise a wide discretion with respect to costs, the Court of Appeal has said that a failure to award costs to a successful party, in the absence of any indication of unreasonable behaviour is an error in law. [1]

[8] The Court of Appeal also stated that “there may be circumstances apart from unreasonableness of a successful party’s conduct that rebut the presumption including the relative financial circumstances of the parties and the effect on one of them of a costs award. [2]

[9] I am required to assess what is sensible and fair consistent with what the unsuccessful party might reasonably have expected to have to pay. [3]

[10] To my mind, a balanced and fair cost award to the applicant to reflect her success in defending the claim by Mr. Diaw is $8,000 inclusive of disbursements and HST.

Justice J.N. Morissette Date: January 19, 2017

[1] Wylie v Leclair, (2003), 64 O.R. (3d) 782 (C.A.) [2] M. (C.A.) v. M. (D.), 2003, 43 R.F.L. (5th) 149 (C.A.) [3] Moon v. Sher (2004), 246 D.L.R. (4th) 440