Boutros v. Kanaan, 2018 ONSC 5057

Court File and Parties

COURT FILE NO.: FC-15-266-2 DATE: 2018/08/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: George Boutros Applicant – and – Lena Kanaan Respondent

Counsel: Eric Letts, Counsel for the Applicant Jonathan M. Richardson, Counsel for the Respondent

HEARD: In Writing

Endorsement on Costs

Engelking J.

1On May 4, 2018, the court released its Reasons for Judgment on a Summary Judgment Motion brought by the Respondent, Ms. Kanaan. On the issue of costs, I indicated as follows:

Ms. Kanaan is entitled to costs on this motion. But for the issue of support for Elias from July of 2016 to January of 2017, which I have determined ought not to be ordered for the reasons contained herein, no live issue requiring adjudication from Mr. Boutros’ Application was before the court. If the parties cannot agree on what those costs ought to be, written submissions not exceeding three pages together with a bill of costs and offers to settle can be made to me. Ms. Kanaan’s costs submissions are to be provided by May 15, 2018. Mr. Boutros shall then have 10 days to provide his response, after which I will make an order.

2I have received submissions on costs from both parties. Ms. Kanaan submits that she should receive costs on a full indemnity basis, having been entirely successful in having Mr. Boutros’ application summarily dismissed. She also submits that Mr. Boutros’ actions in pursuing the application and in failing to provide disclosure in accordance with a previous court order were in bad faith. Mr. Boutros argues that any costs payable to Ms. Kanaan should be tempered by the reasonableness of Ms. Kanaan’s actions, his offer to settle and what is “a fair and reasonable amount that should be paid by the unsuccessful party” as per Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40. Mr. Boutros also referred to the court finding that the proposed amended application was not properly before the court, and that he should not, therefore, be responsible for any costs associated with having to address that issue.

3In my Reasons for Judgment dated May 4, 2018, I indicated that I found it exceedingly difficult to comprehend why Mr. Boutrous was still pursuing his application. The only issue still requiring adjudication, which I found could be done fairly on summary judgment on the materials before me, was that of child support. In the end, I found that Mr. Boutros owed Ms. Kanaan $9957 for 2017 and $4635 for the first five months of 2018. I also found that Mr. Boutros was to pay Ms. Kanaan $927 per month in support of the children, Dimitri and Elias, on a go forward basis, so long as they remained children of the marriage.

4Mr. Boutros relies on an offer to settle which he made via correspondence dated February 28, 2018. Although it was not a formal Offer to Settle as per the Family Law Rules, it can still be considered. However, the outcome of the motion was far less favourable to Mr. Boutros than the offer he made, which was to pay Ms. Kanaan $500 per month in child support commencing March 1, 2018, and no retroactive support. It is not, therefore, helpful to him in the costs analysis.

5Mr. Boutros cannot also rely upon the argument that he had to defend the “proposed amended application”, which I found was not properly before the court. As I indicated in my Reasons for Judgment, it was impossible to discern why the Amended Application had never been filed, or why Mr. Boutros had not sought leave of the court to do so. In any event, it was Mr. Boutros who put it squarely before the court by attaching it as an exhibit to his affidavit, and by his counsel referring to it in argument. He cannot seek costs relief in relation to a claim that he was putting before the court, albeit improperly and ineffectively.

6Mr. Boutros also submits that on the first return of the motion, an adjournment was necessitated for the purpose of Ms. Kanaan having to provide proof of her 2017 income. With this, I agree. Ms. Kanaan came to court and purported to make submissions on the either set-off child support amounts or the parties’ proportionate share of the children’s extraordinary expenses without providing proof of her income. No costs should be flowing to her for the March 1, 2018 appearance. Additionally, Mr. Boutros seeks costs thrown away from that date of $1695 inclusive of HST.

7The issues, or I should say the issue of child support was not a particularly complex one, but it was an important one to the parties. Mr. Boutros’ position was that he was owed a set-off amount of support for the periods when Elias lived with him, notwithstanding the parties were clearly operating under an agreement that neither would pay support while they each had a child in their care. He also appeared to rely upon some kind of “credit”, including in his offer to settle, which flowed from his interpretation of the parties’ previous separation agreement, the validity of which he was at the same time purporting to attack. Frankly, his position in this latter regard made no sense whatsoever, and he was completely unsuccessful in it.

8While I do not find that Mr. Boutros’ behaviour necessarily amounted to bad faith, I do not find it to be reasonable. He did not provide a proper Financial Statement to the Respondent or to the court; he did not provide the disclosure ordered by the court, and he persisted on an application which ultimately had no merit.

9On the other hand, Ms. Kanaan did ultimately necessitate the adjournment on March 1, 2018 and did not make any offer to settle herself.

10Ms. Kanaan is seeking $15,069.27 on a full indemnity basis, or $9,876.18 on a partial indemnity basis.

11Based on all of the above, and Rule 24 of the Family Law Rules, I am prepared to order costs on a partial indemnity basis, reduced to reflect the requirement for the March 1, 2018 adjournment.

Order

12There shall be an order as follows:

1. The Applicant, Mr. Boutros, shall pay to the Respondent, Ms. Kanaan, $8,000 for the motion inclusive of HST and disbursements;
2. This order for costs shall be enforceable by the Family Responsibility Office.