CITATION: Assaf v. Al-Shehimi, 2017 ONSC 4534
COURT FILE NO.: FC-17-870
DATE: 20170726
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HADY ASSAF, Applicant
-and-
FATIMA AL-SHEHIMI, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Rebecca Rosenstock, for the Plaintiff/Applicant
Nardine Roufaiel, for the Defendant/Respondent
HEARD: By written submissions
costs ENDORSEMENT
Audet J.
[1] On June 27, 2017, I heard a motion brought by the Applicant father (“the father”) on an emergency basis in which he sought the following orders:
the return of the parties’ child to the City of Ottawa;
temporary sole custody and primary residence of the child;
access to the mother every second weekend, and;
other corollary relief pertaining to parenting.
[2] The Respondent mother (“the mother”) brought a cross-motion in which she was requesting the following orders:
temporary sole custody of the child;
no access between the father and the child or, in the alternative, that all access be supervised and take place at a supervised access center;
a restraining order against the father;
child support, and;
other corollary relief pertaining to parenting.
[3] On June 27, 2017, I released my written decision and ordered that:
There would be no temporary order as to custody of the child at that time;
The child would remain in her mother’s primary care;
The child would have unsupervised access to her father every Saturday for the whole day as well as every Monday and Wednesday for three hours;
Neither party was to remove the child from the City of Ottawa without the other party’s written consent, or remove the child from the Province of Ontario without the other party’s notarized consent;
The parties were to hand over their respective passports and\or official travel documents (Canadian, Lebanese or otherwise) as well as any travel documents they might have had in their possession with respect to their daughter to their respective lawyers to be held in trust;
The parties were to refrain from attending each other’s residence or place of work;
The father was to pay child support in the amount of $500 per month based on an approximate income of $55,000 per annum, starting on July 1, 2017.
[4] I refused to grant the restraining order sought by the Respondent mother.
[5] If the parties were unable to agree on the issue of costs, they were to provide me with written submissions, which they did.
[6] For the reasons set out below, and after having considered the parties’ submissions and the Family Law Rules, O. Reg. 114/99, there will be no order as to costs.
Applicant’s Position
[7] The father takes the position that he was the most successful party in this motion in that he was able to obtain liberal unsupervised access to his child and successfully defended the mother’s serious allegations against him (of physical, sexual and verbal abuse, drug use, gambling, and criminal conduct) and her request for a restraining order. He states that the issue of the return of the child to the City of Ottawa did not need to be addressed since it was only discovered during the mother’s submissions that the child was already residing in Ottawa. The father states that he never denied his child support obligations, however, the primary focus of the motion was to ensure the child’s safe return to Ottawa and this is why emergency status had been granted for this motion to proceed in the first place. Further, he states that he successfully defended the mother’s claim that he be imputed an annual salary of $110,000.
[8] Generally speaking, the father takes the position that his motion was made necessary by the mother’s unreasonable denial of access and her removal of the child to Montréal without his permission, something that was successfully addressed by his bringing this motion.
Respondent’s Position
[9] The mother takes the position that she was the most successful party in this motion. She states that the father was successful on only one of the nine claims made in his notice of motion namely, the non-removal of the child (which she says she also requested in any event). She claims that she was successful in keeping primary residence of the child, limited access to the father, child support and no contact between the parties.
[10] The mother further takes the position that the father and his counsel were unreasonable in the positions that they took, ignored offers made to allow for reasonable access, filed improper affidavits and took on a very litigious position in the case instead of agreeing to mediation or some other alternative dispute resolution process. Finally, the mother takes issue with the father’s counsel’s hourly rate and the time spent in preparation for this motion.
The Family Law Rules
[11] Under Rule 24 (1) of the Family Law Rules, O. Reg. 114/99 there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[12] Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably, the Court shall examine:
(a) The parties’ behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) The reasonableness of any offer the party made; and
(c) Any offer the party withdrew or failed to accept.
[13] The factors to be considered in assessing costs are set out in rule 24 (11) of the Family Law Rules which include:
(a) The importance, complexity or difficulty of the issues;
(b) The reasonableness or unreasonableness of each party’s behaviour in the case;
(c) The lawyer’s rates;
(d) The time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;
(e) Expenses properly paid or payable; and
(f) Any other relevant matter.
[14] Offers to Settle are the yardstick with which to measure success and are significant both in considering liability and quantum as set out in Osmar v. Osmar (2000), 2000 CanLII 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).
Analysis
Success
[15] I am of the view that there was divided success by the parties in this motion.
[16] At the time the father brought his motion seeking the return of the child to Ottawa as well as sole custody of the child, he understood that the mother continued to reside in Montréal with the child and that it was her intention to remain there with her. She certainly never indicated to him that she intended to return to Ottawa. It is only at the time of the motion before me that the father was notified of the mother’s recent return to Ottawa with the child, an important piece of news that the mother had not shared with him. Therefore, it is misleading to claim, as the mother does, that the father was not successful on his claim for sole custody and the return of the child to Ottawa. Had he known that the mother and the child were already back in Ottawa, he may have taken a different position in his motion. I find that if the father had not initiated these proceedings, the mother may have very well remained in Montréal. In that sense, he was successful in his motion to have his child returned.
[17] Further, the father was provided with significantly more access than what was offered by the mother (namely, no access at all or, alternatively, very limited supervised access). The father also successfully defended the mother’s request for a restraining order against him. This said, the father was not successful in obtaining sole custody of the child or in his attempt to significantly limit access between the mother and the child, a position which I found to be unreasonable as explained below.
[18] The mother was not successful in obtaining sole custody of the child, in imposing supervised access to the father or in obtaining a restraining order against him. However, she was successful in keeping primary care of the child.
[19] It is important to note that while child support was ordered, the father never took the position that child support was not payable. He readily agreed at the motion that child support would be payable if the child was to remain primarily with her mother. What he disputed, successfully so, was the mother’s attempt to impute an annual salary to him of $110,000. I find that the father was more successful on that issue.
[20] Both parties sought orders to refrain the other from removing the child from Ottawa which said orders were granted. I find that neither party achieved more success on these two issues than the other.
[21] As a whole, the primary focus of this motion was the parenting arrangements that met this young child’s best interests. On that issue both parties won a little, lost a little. As a result, there was divided success.
The reasonableness or unreasonableness of each party’s behaviour in the case
[22] It is the mother’s position that the father and his counsel behaved unreasonably in that they have been consistent in their desire for acrimonious litigation rather than to attempt to resolve the issues by way of negotiation or mediation. I am of the view that the father was left with no choice than to bring this application and urgent motion before the Court as he had been unreasonably denied access to his young child for several months. It is important to note that the mother justified removing the child from the Ottawa jurisdiction – and denying access – on the basis of several serious allegations none of which were supported by the evidence at the motion.
[23] In my decision, I found that neither party had been truthful about the role that the other played in the life of this young child. Further, I found that there were serious allegations made by each party about the other which were simply not credible based on the limited evidence that was before me. In light of that evidence and the outcome of the motion, I find that both parties were unreasonable in their respective positions before the Court (each wanting to obtain sole custody of the child with limited access to the other).
Offers to Settle
[24] I have been provided with no Offers to Settle that might have been exchanged between the parties prior to the motion.
Conclusion
[25] Given that there were no Offers to Settle exchanged between the parties that might have justified an award of costs despite the parties’ divided success, I am of the view that there should be no order as to costs.
Madam Justice J. Audet
Released: July 26, 2017
CITATION: Assaf v. Al-Shehimi, 2017 ONSC 4534
COURT FILE NO.: FC-17-870
DATE: 20170726
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HADY ASSAF, Applicant
-and-
FATIMA AL-SHEHIMI, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Rebecca Rosenstock, for the Applicant
Nardine Roufaiel, for the Respondent
costs ENDORSEMENT
Audet J.
Released: July 26, 2017