CITATION: Karar v. Abo-El Ella, 2017 ONSC 33
COURT FILE NO.: FC-16-133
DATE: 20170105
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ABDULLAH SAYED S. KARAR, Applicant
-and-
SHAIMAA ABO-EL ELLA, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Julius Dawn, for the Applicant
Rod A. Vanier, for the Respondent
HEARD: By Written Submissions
costs ENDORSEMENT
[1] There are three sets of costs to be assessed. In assessing these, I am mindful on the factors set out in Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99, and the guidance provided by the case law; and particularly this statement by our Court of Appeal:
Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.[^1]
The February 11, 2016 Motion
[2] The father obtained leave to proceed with his motion for custody and access on an urgent basis on January 28, 2016. I heard that motion on February 11, 2016.
[3] After hearing submissions of counsel, I declined to make an order as to the custody of the children of the marriage, namely, Mariam Karar, d.o.b. August 17, 2009 and Yousef Karar, d.o.b. July 25, 2013. I decided that there would be no change from the current status quo as to residence, education and health except in cases of emergency without both parties’ consent and/or further court order. With some direction from the Court, the parties were able to arrive at a temporary agreement with regard to the father’s access. These paragraphs provided:
- The father shall have supervised access to be reviewed at the case conference of both children, as follows:
i. Starting in February 13, 2016 from 3:30 pm to 6:00 pm a McDonald’s Restaurant at 3773 Strandherd Drive, Ottawa, ON;
ii. Thereafter every Saturday at the matrimonial home, 256 Deer Fox Drive, Ottawa, ON, from 2:30 pm to 6:30 pm in addition to such further access that may be available from the SDRC (Separation/Divorce Resource Centre Inc.), and at FSO (Family Services Ottawa).
All matrimonial home access to be supervised by Heba Kara and Kareem Abo-El Ella, until further consent of the parties on further court Order; either party may appoint an alternate who can be Abdul Kareem Karar or Hamzo Abo-El Ella.
Telephone access every Friday, Sunday and Wednesday (5 minutes) at 7:15 pm. Call to be placed by Respondent to Applicant’s cell phone. Both parties may record calls.
The parties to agree to a family assessor within 10 days to complete a family assessment of the parties and children; failing agreement of an assessor, the parties shall make two-page written submissions for the election of an assessor within five days (March 2, 2016) to Beaudoin J.
Video and audio surveillance to be used (Dr. Weinberger Exhibit Q).
[4] I went on to make orders for the disclosure of police records and for child support in the amount of $1416 per month. I declined to make any order with respect to s. 7 expenses at that time. Costs submissions were to be made by way of submissions on a date to be fixed by the trial coordinator.
[5] Prior to the hearing of the motion, the father had served an offer to settle dated February 9, 2016, and the mother had served her offer dated February 10, 2016.
[6] Without reviewing the respective offers in detail, there is no question that the result obtained was substantially more favourable to the father and was more consistent with his offer to settle. While the father did not obtain the frequency of supervised access in the matrimonial home that he had wished for, the mother was proposing no telephone access, and that any access had to be supervised by someone recognized by her which could have delayed any meaningful access by the father for several months.
[7] I am satisfied that from the outset, the father was fully cognizant of the heightened tensions surrounding the separation and of the allegations of domestic violence before the Court. He made constructive proposals to deal with any concerns about his access including the use of surveillance cameras in the home at his own expense; he was fully prepared to have his access monitored remotely by the mother and be subject to one-on-one supervised access at the SDRC. The mother wanted minimal access, objected to any access in the matrimonial home and wanted access to be supervised solely by the FSO.
[8] The father’s bill of costs for the February 11 motion on a partial indemnity basis is $17, 726.40 exclusive of HST. Prior to that date, he needed to get leave to proceed on an urgent basis and extensive materials were prepared. His bill of costs is comparable to the mother’s bill of costs in the amount of $20,754.37 inclusive of HST. Having regard to the degree of the father’s success and recognizing that there was some agreement, I conclude that the father is entitled to his costs on a partial indemnity basis which I fix in the amount of $15,000 inclusive of HST and disbursements.
The April 20, 2016 Case Conference
[9] The mother thereafter changed counsel, and for a period of time was unrepresented. An appointment was necessary to settle the terms of the February 11 order. This took place at the case conference of April 20, 2016. In the interim, the parties had been unable to agree on an assessor and they had provided me with their written submissions. As a result of the information provided to me by the mother and her solicitor, I appointed Dr. Frances Smyth as the assessor. I made that decision after receiving their submission that Dr. Worenklein, (the father’s proposed assessor) had a confirmed bias on the issue of parental alienation based on a book he had written outlining his own personal experiences and his alienation from his son. I later learned that this information was false.
[10] The mother then brought a motion at the scheduled case conference to amend the temporary order dated February 11, 2016 to provide for heightened security around the father’s access to the children given that there were now criminal charges against the father. She also made new allegations of new threats and of break-ins at her home and she blamed the father.
[11] The mother also sought that access be limited to the FSO, removed from the father’s home, and that any access be in the presence of an independent supervisor with security experience (a security or police officer hired and selected by the mother). She proposed that such access take place at the Centerpointe Childcare Services from 10 a.m. to 12 p.m., and to the McDonald’s restaurant from 2 p.m. to 4 p.m. on Sundays; one of these visits to be eventually replaced by supervised access at the FSO for a total of four (4) hours a week.
[12] I learned that the father had sought leave to appeal my decision appointing Dr. Smyth as the assessor on the basis that false information that had been provided to me by the mother. Moreover, access had not been taking place as agreed to and ordered by me since February 11; there had been only one access visit at McDonald’s since my order and no access in the matrimonial home.
[13] Prior to the case conference, on April 12, the mother had sought leave to bring a motion on an urgent basis to have heightened security during the father’s access on the same terms she later presented to me. The mother made no mention of the upcoming case conference in her affidavit sworn on April 8, 2016. Justice Corthorn did not consider the matter urgent. She noted the mother’s new allegations and the fact that these were contested by the father who had surrendered his passport to his counsel to alleviate any thought that he would leave the country with the children. Justice Corthorn further noted that the new events alleged by the mother had preceded the dates of the letters sent by her counsel that she was prepared to continue with access in accordance with the terms agreed upon on February 11. Justice Corthorn directed that the issue of supervised access be dealt with at the upcoming case conference.
[14] At the case conference, counsel agreed that the family assessment would be completed by Dr. Weinberger, subject to his availability. I confirmed my order of February 11 and found that there is no reason to change it. The mother’s allegations against the father were well known to the Court on February 11 and it was known that criminal charges were pending. The mother had refused to sign off on my order because she did not want to be found in contempt. She felt justified in not complying with my order because of the criminal charges. The fact that charges had now been laid did not change anything since they related to events that predated my order and the agreement. The new allegations by the mother were strongly disputed, did not result in new charges and these occurred before the mother’s then counsel confirmed in writing that she would respect the February 11, order. Even though the mother had disputed the order which prevented its issuance and entry, the father had complied with his support obligations. The mother was warned that her denial of access could lead to a finding of contempt if it continued. I made a further order for disclosure and directed the parties to provide me with their written submissions with respected to the costs of the now abandoned leave to appeal.
[15] I subsequently received correspondence from Dr. Worenklein expressing his concern over my original endorsement appointing Dr. Smyth as the assessor. He disclosed that he was not the author of the book that I had referenced in my decision and that he had simply reviewed it. In light of that correspondence, I invited further written submissions from counsel including the mother as she was unrepresented once again. The mother justified her actions by relying on a reference to a publication in a psychological journal that referenced the book in issue. She claimed that it was a reasonable mistake to conclude that Dr. Worenklein was one of the authors. She provided a copy of the publication that she relied upon. Only a very cursory look at a footnote in that publication would lead someone to conclude that Dr. Worenklein had authored the book in issue. The preceding paragraph clearly indicates “The Review, written by Abe Worenklein, Ph.D., a Clinical Psychologist…”.
[16] Her former counsel advised that he had relied on his client to research Dr. Worenklein given her expertise as a psychiatrist and that he had emphasized to her the importance of verifying her research before he made written submissions to the Court. He submitted all of his correspondence with his client as proof of those communications.
[17] I conclude that it is inexcusable that the mother, herself, a trained psychiatrist, with her occupational expertise and her professional research abilities, should make such a reckless mistake with respect to another mental health professional on matter of such importance. Our Court makes frequent decisions incidental to litigation based on unsworn evidence of the parties in the form of oral and written submissions. The reckless submission of false information completely undermines the integrity of the adjudication process and should attract the most severe sanction when it is discovered.
[18] In this case, the written submission not only undermined the integrity of a critical decision, it also undermined the professional reputation of a respected psychologist. The father was forced to bring a motion for leave to appeal which fortunately was resolved. He has incurred a substantial indemnity bill of $6750 for costs of the abandoned appeal which amount I consider entirely reasonable; and I therefore order the mother to pay that amount inclusive of disbursements and HST.
[19] As for the settlement of the order and the attendance at the case conference, the mother was once again unsuccessful in her attempt to further restrict the father’s access and she admitted her noncompliance with the order of February 11 which was finally settled on that date. She made unsubstantiated allegations against the supervisor of the SDRC and raised concerns about the video surveillance in the matrimonial home even though she had never once taken the children there to visit their father. I fix the father’s costs of his attendance on that date in the amount of $5,000 inclusive of HST and disbursements.
The September 23, 2016 Motion
[20] The father then brought a motion, returnable on September 23, 2016, to vary the order made on February 11, 2016 as was contemplated at that time. The father was completely successful. He had earlier served an offer to settle on the mother on essentially the same terms as ordered by the Court.
[21] In reaching my decision, I was satisfied on all of the evidence that the mother had attempted to frustrate the father’s access and his relationship with his children from the outset of these proceedings. I found that the supervision notes from the SDRC disclosed a positive and loving relationship between the father and the children. I concluded that there was no evidence to support the need for continued supervision of the father’s access except for the exaggerated fears of the mother.
[22] I also found that the mother continued to delay the custody and access assessment which was set to be completed by Dr. Weinberger. The continued supervision of the father’s access in the absence of any credible evidence would only serve to prejudice the father in the assessment process.
[23] In this case, the father was granted all the relief claimed and is presumptively entitled to costs. The notice of motion included additional relief solely for the benefit of the mother by offering to have a tracking App on the father’s cell phone permitting her to monitor the access. He also agreed to move his Saturday access to Sunday at the mother’s request to accommodate Mariam’s Arabic classes on Saturdays.
[24] The father’s offer of July 19, 2016 met all the criteria of rule 18(14). That offer was served a month before the hearing. The offer was more favourable to the mother than the court order.
[25] The father also relies on rule 24(8) that directs that if a party has acted in bad faith, the Court shall decide costs on full recovery basis and shall order the party to pay them immediately. I am satisfied that the mother knowingly and systematically breached the February 11 order, forcing the matter to return to court for repeated appearances, and ultimately, the need for motion for unsupervised access. The Court had repeatedly cautioned the mother that the court orders had to be followed.
[26] Between February 11 and April 20, 2016, the mother had allowed only one single access visit. The mother refused all other access visits, even though there was a negotiated order with respect to the supervision of access. The mother hired strangers and a security guard to supervise access even when such relief was rejected by the Court. She obstructed and ultimately terminated the SDRC access and delayed the court ordered family assessment.
[27] The mother’s behaviour is best demonstrated by her reckless submission of false evidence to the Court with respect to Dr. Worenklein. Her actions demonstrate the degree to which she was opposed to anything suggested by the father. This fact alone has been held to be sufficient to meet the test of bad faith.[^2] Ongoing unreasonable behaviour that recklessly increases the cost of litigation in itself constitutes bad faith.[^3]
[28] The father seeks costs on the full recovery basis in the amount of $38,823.50 plus disbursements and HST for a total amount of $44,564.60.
[29] The mother argues that she was forced to flee a violent relationship and that she was, and is, fearful for herself and for her children’s safety. She claims that she was at the mercy of the CAS and the police to guide her through this process and relies on the fact that the father offered to take an anger management course as confirmation that her fears are real.
[30] She characterizes Mariam’s reports to the school as a desperate cry for help and continues to claim that she was stalked, received a death threat directly from the husband, a second verbal threat to remove the kids to a country not protected by the Hague convention and another written threat at her place of employment as well as break and enters at her residence. She claims she was the first to make an offer for supervised access on January 23, 2016 and to have always taken a principled approach.
[31] She relies on case law that provides that costs are generally not awarded for custody matters save and except for very exceptional circumstances and that parents who bona fide contest the issue of custody, do not stand in the same position as ordinary litigants.[^4] She further argues that this case bears an analogy to child protection cases and, for the lack of success, cannot, on its face, amount to the liability for costs were the issue of child protection is being considered.
[32] She submits that parents should be entitled to vigorously oppose and defend the interests of the children’s safety and best interests without the fear of costs sanctions. She notes that the father’s bill of costs is excessive in that it represents 120 hours expended on a three-hour motion. She notes that there are 55.5 hours spent in communications with their client. There were two affidavits filed; 17 and 20 paragraphs each. She also notes that the voluminous continuing records submitted by the father were excessive and superfluous.
[33] With regard to Dr. Worenklein, the mother acknowledges that she made an error but claims it was made inadvertently due to the haste imposed by her previous counsel and she blames him for failing to catch her error. She formally apologizes for what she continues to describe as an accidental error. She refers to her own bill of costs for the motion in the amount of $19,335.37 which she argues is more representative of the actual anticipated costs of a motion of this magnitude.
[34] She adds that her ability to pay any costs has been severely compromised. Her savings have been essentially exhausted as a result of the six-month legal marathon. She claims she is saddled with debt and does not have parents to assist her with her financial circumstances as is the case for the father.
[35] I conclude that the mother’s obstructive behaviour increased the costs of this motion in relation to the correspondence, emails and phone calls that were necessary in attempts to arrange the father’s access visits through ever-changing scenarios. Access visits were repeatedly cancelled or unilaterally changed. The schedule with the SDRC had to be constantly renegotiated; there were repeated objections about the surveillance cameras; unilateral changes to the access supervisor; conflicts arising from the security guard hired by the mother; and the mother’s attempts to deny any access at the father’s new residence. To date, each party has expended more than $100,000. These costs are extraordinary to simply achieve the enforcement of a negotiated interim access order and the implementation of a reasonable access regime.
[36] The mother continues to blame others and offers excuses for her unreasonable behaviour. I am satisfied that from the very outset, she was determined that she would only allow the father to have limited supervised access on her terms. She has exaggerated concerns about the children’s safety and, in the end, has no doubt shared her belief with her children that the father is a dangerous man. It is tragic that she has been unable to see the damage that she may have done to that relationship.
[37] Where there are allegations of domestic violence, our Courts generally proceed with caution in dealing with matters of custody and access. Where one parent is charged criminally, there is generally a restraining order in the form of a recognizance that offers a measure of security. In this case, although serious, none of the charges against the father involve the children.
[38] In cases such as these, supervised access for a short period of time is sometimes ordered to remove any concerns that may be present. Here, creative and viable options were presented by the father to alleviate the Court’s and the mother’s concerns. These proposals were acceptable to the Court, agreed to by the parties and incorporated into a court order. The new allegations by the mother predate her previous counsel’s assurances that she would comply with that order.
[39] I conclude that the mother never deviated from her original position and that she opposed all proposals other than her own. She cannot disguise her continued frustration of court orders by pretending to be concerned solely for the welfare of the children.
[40] Both the father’s offer to settle and my finding of bad faith attract an award of full indemnity costs. Having said that, I agree that the amount claimed is excessive for a three hour motion and I fix these in the amount of $25,000.00 inclusive of HST and disbursements.
[41] The costs of the abandoned appeal are payable forthwith. All other costs awards are to be paid 90 days before trial.
Mr. Justice Robert N. Beaudoin
Date: January 05, 2017
CITATION: Karar v. Abo-El Ella, 2017 ONSC 33
COURT FILE NO.: FC-16-133
DATE: 20170105
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ABDULLAH SAYED S. KARAR, Applicant
-and-
SHAIMAA ABO-EL ELLA, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Julius Dawn, for the Applicant
Rod A. Vanier, for the Respondent
costs ENDORSEMENT
Beaudoin J.
Released: January 05, 2017
[^1] Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40
[^2] Dostie v. Poapst, 2015 ONSC 1532, 2015 CarswellOnt 3253,
[^3] Charles v. Sargeant, 2015 ONSC 5864, 2015 CarswellOnt 14669,
[^4] Peters v. Peters, 2003 (ON SC)