Court File and Parties

Court File No.: FS-17-88238-00 Date: 2018 11 19 Superior Court of Justice - Ontario

Re: Muhammad Muddasir, Applicant And: Asfayeen Iqbal, Respondent

Before: Justice G. D. Lemon

Counsel: Kevin B. Peires, Counsel for the Applicant Asfayeen Iqbal, In Person

Heard: In Writing

Costs Endorsement

The Issue

[1] On August 28, 2018, I heard a motion with respect to custody and access. Mr. Muddasir was entirely successful. I have now received costs submissions from both parties. Mr. Muddasir seeks costs fixed in the amount of $6,116.77. Ms. Iqbal submits that costs should not be awarded to Mr. Muddasir.

Authorities

[2] In Mattina v. Mattina, 2018 ONCA 867, our Court of Appeal recently said:

[9] Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes.

[10] This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

[11] The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution.

[12] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal and the presumption that a successful party is entitled to costs applies equally to custody and access cases.

[13] Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.

[14] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs: (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: i. each party’s behaviour, ii. the time spent by each party, iii. any written offers to settle, including offers that do not meet the requirements of rule 18, iv. any legal fees, including the number of lawyers and their rates, v. any expert witness fees, including the number of experts and their rates, vi. any other expenses properly paid or payable; and (b) any other relevant matter.

[15] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[16] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably: Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[17] Rule 24(5) provides guidance on how to evaluate reasonableness: In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party’s 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.

[18] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith: If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. (Citations omitted).

Analysis

[3] Mr. Muddasir was successful and is therefore presumptively entitled to his costs.

[4] He made an offer to settle in the terms of his notice of motion. I granted an order in the same terms.

[5] The motion was brought on an emergency basis since Ms. Iqbal was preventing Mr. Muddasir from seeing the children. From a review of the Bill of Costs, the hourly rate and the time spent are reasonable.

[6] In response, Ms. Iqbal attempts to re-argue the motion. She also sets out various matters that have occurred since my order. Those will be issues for the trial but are not relevant to the present issue of costs.

[7] Taking all of the factors into consideration, I order that Ms. Iqbal pay costs fixed in the amount of $6,116.77 payable at the end of trial or other resolution of this matter.

Justice G. D. Lemon Date: November 19, 2018

COURT FILE NO.: FS-17-88238-00 DATE: 2018 11 19 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Muhammad Muddasir Applicant – and – Asfayeen Iqbal Respondent COSTS ENDORSEMENT Lemon, J Released: November 19, 2018