COURT FILE NO.: FS-17-89323-00 DATE: 2018 11 26 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MONA AYESH Philip Viater, for the Applicant Applicant

• and -

ABDELSALAM ZEIDAN Junaid Kayani and Ravinder Sawhney, for the Respondent Respondent

HEARD: November 2, 2017, at Brampton, Ontario Price J.

COSTS ENDORSEMENT

OVERVIEW

[1] When Mona Ayesh and Abdelsalam Zeidan separated at the end of 2016, Mr. Zeidan moved to Abu Dhabi for employment and Ms. Ayesh began the present proceeding. Ms. Ayesh brought a motion for the support of herself and the parties’ three children and the court released its decision and reasons on December 11, 2017. The parties were unable to agree on who should pay the costs of the motion and the amount. The parties have filed written submissions on that issue which the court has reviewed. This endorsement will address the costs issues.

BACKGROUND FACTS

[2] On July 6, 2017, Mr. Zeidan filed a motion for access to the parties’ children and for leave to travel with them outside Ontario.

[3] A case conference was held before Van Melle J. on September 1, 2017. Van Melle J. granted the parties leave to proceed with their motions.

[4] On October 16, 2017, Ms. Ayesh made a motion for hearing October 26, 2017, for child support, spousal support, and for an Order requiring Mr. Zeidan to contribute to the children’s special and extraordinary expenses.

[5] The parties’ motions came before this court on November 2, 2017, a regular motion date reserved for motions requiring an hour or less for argument. Mr. Zeidan sought to proceed with his motion for access and to adjourn Ms. Ayesh’s motion for support on the ground that it was not urgent and should await a further case conference. Having regard to the fact that he was apparently in Abu Dhabi, with no immediate plans to come to Ontario and that, according to Ms. Ayesh, he had discontinued utility payments on the matrimonial home and other financial support to her, the court heard Ms. Ayesh’s motion on November 2, 2017, and adjourned Mr. Zeidan’s motion for access to December 11, 2017.

[6] The court noted in its endorsement on November 2, 2017, that the affidavit purporting to be Mr. Zeidan’s had, in fact, been signed on his behalf by his brother. The court heard argument on Ms. Ayesh’s motion for support provisionally, subject to the delivery of an identical affidavit within a week, sworn by Mr. Zeidan himself before a Notary in the United Arab Emirates.

[7] The court adjourned the motions to December 11, 2017, with leave to Mr. Zeidan to deliver a replacement of his earlier affidavit, but no surrebuttal evidence, by November 15, 2017, and with leave to Ms. Ayesh to deliver reply evidence by November 15, 2017. Notwithstanding this court’s direction, Mr. Zeidan sought to tender surrebuttal evidence, which the court declined to receive.

Disposition of Ms. Ayesh’s motion

[8] Ms. Ayesh claimed child support of $6,504 per month and spousal support of $5,605 per month, based on an annual income of $231,065 which she asked to be imputed to Mr. Zeidan. Mr. Zeidan submitted that he earned the equivalent of $126,000 CAD and should therefore be required to pay table child support in the amount of $2,253 per month for the parties’ three children.

[9] Mr. Zeidan submitted that the court in Ontario had no jurisdiction to entertain Ms. Ayesh’s claim for spousal support, as a court in Abu Dhabi had granted him a divorce. He submitted that if the court found that it had jurisdiction, it should order him to pay between $128 and $739 per month, based on the Spousal Support Advisory Guidelines, applying the “With Child Support” formula.

[10] For reasons issued on December 11, 2017, this court held that it was not clear, based on the evidence Mr. Zeidan had filed, whether he had a substantial connection with Abu Dhabi. As the onus was on him to establish that there was a final divorce decree that precluded this court from assuming jurisdiction over spousal support, and he had not discharged this onus, the court proceeded to hear Ms. Ayesh’s motion for spousal support.

[11] Mr. Zeidan produced his Notices of Assessment for 2013 to 2015, the year he left Canada for residence and employment overseas. The 2015 Notice of Assessment disclosed income of $51,506.00. Because Mr. Zeidan left Canada in May 2015, the Court pro-rated his income from the first 5 months and on that basis, found that his annual income that year was $123,614.00.

[12] Ms. Ayesh produced a letter dated October 4, 2015, from the General Manager of Mr. Zeidan’s employer to the Consulate General of Italy, requesting a multiple entry work visa. The letter stated that Mr. Ayesh earned 56,000 United Arab Emirates Dirham (AED) per month, including allowances, which translates to an annual salary of $231,065 CAD per year. Mr. Zeidan stated that this was a temporary employment which he completed a short time later. This court found that the income that Mr. Zeidan earned from that employment was an anomaly and not the fairest basis for determining his income for the purpose of support.

[13] Mr. Zeidan tendered a “Salary Transfer Certificate” dated June 14, 2017, from his employer, which stated that he had been employed by that company since June 21, 2015, was currently a Senior Process Engineer, and earned a “Basic Salary” of AED 30,000. That translates to $125,134.56 CAD annually. The Certificate additionally stated that accommodation was provided by the Company and “Gratuity: As per UAE Labour Laws”. Counsel were unable to provide information as to the meaning of this.

[14] The court noted that the income recorded in Mr. Zeidan’s 2015 Notice of Assessment was presumptive evidence, but not conclusive of his income for support purposes. If the evidence disclosed that the amount reported at Line 150 of his Notice of Assessment was not the fairest basis for determining his income, the court was entitled to average his last three years income pursuant to s. 17 of the Federal Child Support Guidelines (FCSG), or impute an income to him pursuant to s. 19.

[15] The court found that Mr. Zeidan had not provided all of the financial disclosure required of him pursuant to the FCSG and the Family Law Rules. In particular, he has not provided the details of his actual earnings since 2015.

[16] The court noted that Ms. Ayesh and Mr. Zeidan did not make submissions as to what gross-up is appropriate for Mr. Zeidan’s income. Given that the parties’ employment was in flux, and because it was uncertain whether Mr. Zeidan would be resuming his employment and residence in Ontario, this court found that it was premature to gross-up his overseas income at this time. The court noted that depending on the circumstances prevailing at trial, it might be appropriate for the trial judge to do so based on more complete evidence.

[17] The court found that Ms. Ayesh was entitled to compensatory spousal support, having regard to the economic disadvantage she had suffered by assuming care of the parties’ household and children, enabling Mr. Zeidan to devote himself to his occupation as an Engineer. The court further found that it was not realistic to expect that Ms. Ayesh would immediately become financially self-sufficient at the parties’ previous standard of living and that she was additionally entitled to spousal support on the non-compensatory ground of her need and Mr. Zeidan’s ability to provide support.

[18] The court noted that Ms. Ayesh is a single mother caring for three children with differing needs. She planned to continue her studies so that she could eventually secure suitable employment. She planned to apply to Seneca College for enrolment in a two year program to become qualified as a Social Service Worker. In the meantime, she required spousal support from Mr. Zeidan. The court held that it was reasonable to infer that Ms. Ayesh, who is 40 years old, is employable and able to earn at least the minimum wage. It therefore imputed an annual income of $20,000.00 to her.

[19] Based on Mr. Zeidan’s income of $126,000.00, he was ordered to pay child support at the table amount of $2,253.00 per month for the parties’ three children. Based on Mr. Zeidan’s income of $126,000.00 and Ms. Ayesh’s imputed income of $20,000.00, the court ordered Mr. Zeidan to pay spousal support at the mid-point of the range suggested by the SSAG, being $428.00 monthly, beginning January 1, 2017, the month following the parties’ separation.

[20] The parties did not offer evidence or argument regarding the children’s special and extraordinary expenses. The court therefore ordered Mr. Zeidan to pay 86.3% of the children’s s. 7 expenses and directed that if the parties were unable to agree on the amounts of those expenses, either party could apply to the court for that determination.

[21] There was insufficient time on November 2, 2017, to address the issues of Mr. Zeidan’s access to the children and the restraining order made by André J. The parties made conflicting allegations in their affidavits and had not yet cross-examined each other. The court therefore granted the parties leave to cross-examine and adjourned Mr. Zeidan’s motion for expanded access and Ms. Ayesh’s motion for a permanent restraining order until after the cross-examinations were completed.

[22] With regard to costs, the Court stated:

[106] Ms. Ayesh was successful in her motion and is presumptively is entitled to her costs. In Berta v. Berta (2015), the Court of Appeal stated:

In Biant v. Sagoo (2001), 2001 ONSC 28137, 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:

[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) of the Family Law Rules to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665, 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 2003 ONCA 18880, 67 O.R. (3d) 181 (C.A.), at para. 40. [1]

[23] There was insufficient time to address the issue of costs on November 2, 2017. The court therefore granted the parties leave to file costs submissions in writing and their Costs Outlines. The court has reviewed that material.

POSITIONS OF THE PARTIES

[24] Ms. Ayesh claims her costs on a substantial indemnity basis in the amount of $11,080.78. She relies on what she submits was her success in the motion and on Mr. Zeidan’s unreasonable conduct in failing to make full financial disclosure.

[25] Mr. Zeidan claims his costs in the amount of $13,618.38, consisting of costs on a substantial indemnity scale to October 23, 2017, when he served an Offer to Settle that he says was more favourable to Ms. Zeidan than the outcome of the motion, and on a full recovery basis thereafter.

ANALYSIS AND EVIDENCE

a) General principles

[26] A successful party is presumed to be entitled to his or her costs, pursuant to Rule 24(1) of the Family Law Rules. The preferable approach in family law cases is to allow costs on a full recovery basis, provided the successful party acted reasonably and the costs claimed are proportional to the issues and results and were within the range that the opposing party should have expected if unsuccessful in the motions. [2]

[27] Costs Orders are designed to achieve three principal purposes, (a) to indemnify successful litigants; (b) to sanction unreasonable conduct of the litigation; and (c) to encourage settlement. [3]

[28] In Berta v. Berta, (2015), the Court of Appeal stated:

In Biant v. Sagoo (2001), 2001 ONSC 28137, 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:

[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665, 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 2003 ONCA 18880, 67 O.R. (3d) 181 (C.A.), at para. 40. [4]

[29] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, however, unreasonable conduct will result in a higher award of costs.

Applying the principles to the facts of the present case

Entitlement to costs

[30] Subrule 24(1) of the Family Law Rules, Ont. Reg. 114/99, articulates the fundamental “presumption that a successful party is entitled to the costs of a motion . . .” Ms. Ayesh was successful in obtaining an Order for the support of herself and the parties’ children and requiring Mr. Zeidan to contribute a proportional share to the payment of the children’s expenses. She is presumptively entitled to her costs.

[31] Ms. Ayesh claims her costs on the ground that she was successful in obtaining an Order for spousal and child support and requiring Mr. Zeidan to contribute to the payment of the children’s’ special and extraordinary expenses. Mr. Zeidan argues that no costs should be awarded to Ms. Ayesh, owing to the fact that the child support ordered was less than what she had claimed.

[32] Each party accuses the other of unreasonable conduct and claims his/her costs on a substantial or full recovery basis. Ms. Ayesh submits that costs should be on a higher scale because Mr. Zeidan failed to make full financial disclosure. Mr. Zeidan argues that costs should be on a higher scale because Ms. Ayesh did not accept his Offers to Settle.

[33] The fact that Ms. Ayesh recovered costs in a lower amount than she claimed owing to the amount of income the court imputed to Mr. Zeidan does not disentitle her to costs, as her inability to accurately assess Mr. Zeidan’s income resulted from Mr. Zeidan’s failure to provide the full financial disclosure to her. In particular, he failed to provide full disclosure of the income he had earned since he left Canada in May 2015.

[34] For the same reason, Ms. Ayesh’s failure to accept Mr. Zeidan’s Offers to Settle does not disentitle her to her costs or entitle Mr. Zeidan to costs. Ms. Ayesh’s failure to accept the Offers to Settle is adequately explained by Ms. Zeidan’s failure to make full and timely disclosure of his financial circumstances to her.

[35] In Kielt v. Gawne, (1993), Cusinato J. stated:

[27] Such principle of disclosure applies to all evidence, and it is fundamental to the criteria for disclosure that each of the parties know the position of the other. In this manner its real purpose is to promote resolution or settlement at the earliest opportunity when both sides have full understanding of the evidence.

[33] Failure to disclose such vital information in a timely fashion long before trial, and when it was asked for at discovery, under the circumstances should have some consequences. Here I find it disentitles the defendant to costs in spite of their success. On this issue the court has a discretion, and I exercise it for the reasons given. [5]

[Emphasis added]

[36] In Kent v. Stop 'N' Cash 1000 Inc., [6] in 2006, a civil case decided under the Simplified Rules, Turnbull J. stated:

It is important at the outset to recognize that this trial proceeded under Rule 76 as a simplified trial. It is clear from reading that rule, that its efficacy is founded on full and early production of all relevant documents and evidence. Only then can the cost efficiencies envisaged by the rule be realized without compromising the rights of all parties to full production in advance of trial. In other words, trial by ambush is not to be permitted. Without full disclosure, the ability of a party to effectively use Rule 49 to make meaningful offers to settle prior to trial is negated.

[Emphasis added]

[37] Turnbull J.’s observation applies equally to offers received. Without full disclosure, a party’s ability to assess a Rule 49 offer and thereby make a meaningful effort to settle prior to a trial or the hearing of a motion is negated.

[38] In Punzo v. Punzo, (2011), this Court stated:

Mr. Punzo’s failure to make full financial disclosure prevented Ms. Punzo and her counsel from determining his income and assessing the merits of his offers with reference to the amount of support she was entitled to receive. [7]

[39] For the above reasons, I find that Mr. Ayesh is entitled to her costs from Mr. Zeidan. I now turn to consider the appropriate amount of costs.

The amount of costs to be paid

(i) Factors to be considered

[40] Rule 24(11) of the Family Law Rules lists the factors which the court should consider in quantifying costs:

24. (11) A person setting the amount of costs shall consider, (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 witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (e) expenses properly paid or payable; and (f) any other relevant matter.

[41] I will now turn to consider each of these factors in relation to the parties’ claims for costs.

(a) Importance, Complexity and Difficulty

[42] Among motions to change in a final family law Order, this one was relatively straight-forward. It was determined based on Mr. Bullock’s non-disclosure and non-compliance with court Orders. It did not involve a change in access or custody, which such motions sometimes entail and which can add to their complexity.

(b) Reasonableness of Each Party’s Behaviour

[43] In the normal course, costs are awarded to a successful litigant on a partial indemnity scale, representing approximately 60% of the successful litigant’s total legal fees and disbursements; however, the court has the discretion to order costs to be paid on a substantial indemnity scale (partial indemnity costs x 1.5 = 90%) [8] or, especially in cases where there has been unreasonable conduct, on a full recovery basis. [9]

[44] As noted above, Mr. Zeidan’s conduct in failing to make full financial disclosure and in failing to comply with the court’s orders entitles Ms. Ayesh to her costs on a full recovery scale. Rule 24(11)(b) of the Family Law Rules explicitly recognizes that costs may be used to express the court’s disapproval of a litigant’s unreasonable conduct. Further, as noted above, s. 24(8) of the Family Law Rules, provides for full recovery costs if a party has acted in bad faith.

[45] A failure or refusal by a party to make accurate financial disclosure and reveal their true income may constitute bad faith for costs purposes: DePace v. Michienzi, 2000 ONSC 22460, [2000] O.J. No. 4436 (Ont. S.C.); and Kardaras v. Kardaras, 2008 ONCJ 616, [2008] O.J. No. 5721.

[46] The Family Law Rules provide, in this regard:

24(8) 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.

[47] Justice J.W. Quinn, in Trudel v. Trudel, (2010), stated:

[17] Where, as here, a party adopts a catch-me-if-you-can approach to financial disclosure, thereby demonstrating bad faith, that fact overshadows everything else such that full-recovery costs should follow. Litigation in Family Court relies heavily on the timely and true disclosure of financial information. Rule 13 of the Family Law Rules is designed to achieve the required financial revelation and the husband made a mockery of its provisions:

[18] The financial non-disclosure of the husband amounts to dishonesty. This equates with bad faith. Thus, the wife is entitled to full-recovery costs on this basis alone, as subrule 24(8) provides: “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.” [10]

[Emphasis added]

[48] Harper J. observed in Stevens v. Stephens, (2012):

Deliberate non-disclosure is not merely unreasonable conduct, it is an example of bad faith….One of the most significant contributors to lengthy and costly litigation is untimely and inaccurate disclosure. All too often, one party makes every effort to thrust economic havoc on the other when this game of litigation hide and seek forms a part of their litigation strategy. This cannot be permitted by the court. [11]

[Emphasis added]

[49] I find that Mr. Zeidan’s failure to make full financial amounted to “bad faith” within the meaning of subrule 24(8) of the Family Law Rules. [12] If not “bad faith”, his failure to disclose was, at the very least, “unreasonableness” within the meaning of Rule 24(11)(b) of the Family Law Rules, and attracts the sanction of costs on a full recovery basis. [13]

[50] In any event, Perkins J. in Biant v. Sagoo, (2001), held that “the preferable approach in family law cases is to have cost recovery generally approach full recovery so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.” [14]

(c) The lawyer’s rates

[51] Ms. Ayesh claims an hourly rate of $375.00 for her lawyer, Philip Viater. Mr. Viater was called to the Bar in Ontario in 2009, and had practiced Family Law for 8 years when Ms. Ayesh’s motion was heard. She was assisted by Lyna Perelman, who was called to the Bar in 2013, and had practiced for 4 years.

[36] The “Information for the Profession” bulletin, from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”) [15], suggests maximum hourly rates (on a partial indemnity scale) of $225.00 for lawyers, such as Mr. Viater and Ms. Perelman, with less than 10 years’ experience.

[37] Aitken J., in Geographic Resources, allowed the Defendants/Respondents’ costs of an appeal from a Master’s order on a partial indemnity scale in the amount their lawyer had charged. [16] She rejected the Plaintiffs/Appellants’ argument that the Respondents should be awarded less than they had been charged because the parties had agreed that costs would be paid on a partial indemnity scale. Aitken J. began by considering the Costs Bulletin. She considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group, but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she used their unadjusted rates. [17]

[38] Although Geographic Resources was a civil action, the approach that Aitken J. took in that case applies equally in the family law context. The court adjusts the hourly rate, based on the Costs Bulletin, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 24 of the Family Law Rules. If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly.

[39] Aitken J. makes it clear that the starting point in arriving at an appropriate hourly rate when fixing costs is the Costs Bulletin, not the actual hourly rate the lawyer charged her client. The actual rate charged is irrelevant, except as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged, in keeping with the principle of indemnification. [18] The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same place.

[40] The Costs Bulletin, published in 2005, is now dated. It is therefore appropriate to make an adjustment to the rates suggested in the Costs Bulletin based on inflation. Smith J. took this approach in First Capital (Canholdings) Corp. v. North American Property Group. [19] Mr. Viater’s and Ms. Perelman’s partial indemnity rate of $225.00 in 2005 was the equivalent of $271.49 in 2017, when the motions were argued, according to the Bank of Canada’s online Inflation Calculator.

[41] Mr. Viater’s and Ms. Perelman’s partial indemnity rate, adjusted for inflation, translates to $407.23 per hour on a substantial indemnity scale, using the formula prescribed by Rule 1 of the Rules of Civil Procedure, which defines substantial indemnity costs to mean "costs awarded in an amount that is 1.5 times what would otherwise be allowable in accordance with Part I of Tariff A" - i.e. 1.5 times the partial indemnity rate. [20]

[42] Mr. Viater’s actual hourly rate charged to Ms. Ayesh was $375.00. Ms. Perelman’s was $300.00. Both are less than the maximum rate they are entitled to claim on a substantial indemnity scale. In Mantella v. Mantella, (2006), Corbett J. noted that an award of costs is designed to indemnify, and that the amount should therefore not exceed the amount charged to the client. [21] The Divisional Court, in Geographic Resources Integrated Data Solutions Ltd. v. Peterson, adopted Corbett J.’s analysis in Mantella, holding that it was not trumped by earlier jurisprudence from the Court of Appeal. [22] Although the actual rates of Mr. Viater and Ms. Perelman should not be exceeded, I find those rates to be reasonable, especially having regard to the fact that Ms. Ayesh is entitled to her costs on a full recovery basis.

(d) Time reasonably spent

[43] Ms. Ayesh’s lawyers spent a reasonable amount of time preparing for and arguing her motion. Mr. Viater spent 14.5 hours and Ms. Perelman spent 21.9 hours. Based on the fact that a greater portion of the time was spent by Ms. Perelman, I conclude that Mr. Viater delegated work to Ms. Perelman were possible, which minimized the client’s total costs.

[44] The issues required the majority of the day to argue at the hearing. The argument and the material disclosed that the evidence required careful preparation and analysis.

[45] Mr. Zeidan, while challenging the amount of costs claimed by Ms. Ayesh, tendered a Costs Outline which discloses that his lawyers spent over 35 hours. His senior lawyer, Mr. Kayani, was called to the Bar in Ontario in 2001 and therefore had 8 years more experience than Mr. Viater and commanded a higher hourly rate. It is to be expected that he would require less time to perform the same tasks. Additionally, it is to be expected that the lawyers for Ms. Ayesh, who bore the burden of proof, would have to spend a greater amount of time to prepare and present the motion than Ms. Zeidan’s lawyers would opposing it.

[46] Based on my observation of the oral argument and my review of the material filed, I find that the time spent by Mr. Viater and Ms. Perelman was reasonable and necessary to achieve the outcome they did.

(e) Expenses properly payable

[47] The disbursements claimed by Ms. Ayesh are modest ($282.50, inclusive of HST) and consist of process server, courier and photocopying. Their amount is not disputed and will be allowed at the amounts claimed.

(f) Other Relevant Matters - proportionality

[48] I have considered the proportionality of the costs that Ms. Bullock has claimed. The principle of proportionality was added to the Rules of Civil Procedure by the amendment of Rule 1.04, which I apply by analogy to the present motion as there is no equivalent provision in the Family Law Rules. Rule 1.04 directs that the Rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Sub-Rule 1.1, which was added, provides:

(g) Proportionality (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.

[49] Ms. Viater did not “over-lawyer” the motion. The time he spent was reasonably necessary to present the motion and deal with Mr. Zeidan’s arguments. Ms. Ayesh claims costs in the total amount of $14,133.48 on a full recovery basis. These costs were proportional to Mr. Zeidan’s own costs, which amounted to $13,618.38.

[50] The costs claimed by Ms. Ayesh are also proportional to the amounts at stake. As noted above, she obtained an Order for child support of $2,253.00 per month, a 86.3% contribution to the payment of the children’s s. 7 expenses, and spousal support of $428.00 per month.

(h) What is fair and reasonable

[51] I must, at this point, step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved. In making this determination, I take into account the reasonable expectation of the parties concerning the amount of costs. [23]

[52] As noted above, Mr. Zeidan paid his own lawyers an amount that was approximately equal to the amount claimed by Ms. Ayesh. I find that the amount claimed by Ms. Ayesh is within the range of the costs that Mr. Zeidan should reasonably have expected to pay if unsuccessful in the motion.

[53] There is an element of behaviour modification to a costs order serving to encourage a change in attitude from a “litigate with impunity” mindset. [24] In Mooney, Curtis J. made the following observations, which I adopt:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.

Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.

One of the purposes of costs is to change behaviour. The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2 of the Family Law Rules.

Unless courts discourage this behaviour, it will continue and increase. Orders for costs are one way to discourage this behaviour. [25]

CONCLUSION AND ORDER

[54] For the foregoing reasons, it is ordered that:

1. Mr. Zeidan shall pay Ms. Ayesh’s costs of the motion, fixed in the amount of $14,133.48, consisting of the following: Fees: $13,850.98 inclusive of HST Disbursements: $282.50, inclusive of HST

2. The above costs shall be enforceable as child support by the Director of the Family Responsibility Office.

3. A Support Deduction Order shall issue.

4. These costs shall be payable forthwith, with 3% post-judgment interest from today’s date.

Price J.

Released: November 26, 2018

COURT FILE NO.: FS-17-89323-00 DATE: 2018 11 26 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MONA AYESH Applicant - and - ABDELSALAM ZEIDAN Respondent COSTS ENDORSEMENT Price J. Released: November 26, 2018

[1] Berta v. Berta, 2015 ONCA 918, at paras. 92-93.

[2] Family Law Rules, O Reg. 114/99, Rule 24(1); Sims-Howarth v. Bilcliffe, 2000 ONSC 22584, para. 11; Biant v. Sagoo, 2001 ONSC 28137, para. 1.

[3] Paranavitana v. Nanayakkara, 2010 ONSC 2257.

[4] Berta v. Berta, 2015 ONCA 918, at paras. 92-93.

[5] Kielt v. Gawne, [1993] O.J. No. 2570, (1993), 44 A.C.W.S. (3d) 950 (Ont. Ct. Gen. Div.). See also Solomah v. American Express Travel Related Services Co. (1998), 84 A.C.W.S. (3d) 950 (Ont. Ct. Gen Div.)), Bailey v. Leamington (Town), [2001] O.J. No. 386 (ON S.C.) per Cusinato J., at para. 16; Craig v. Toronto (City), [2008] O.J. No. 1664, per Forestell J., at para. 22;

[6] Kent v. Stop 'N' Cash 1000 Inc., 2006 ONSC 22660, at para. 51.

[7] Punzo v. Punzo, 2011 ONSC 7300, para. 52.

[8] Rules of Civil Procedure, RRO 1990, Reg 194, Rule 1, as authorized by Family Law Rules, Rule 1(7).

[9] Feinstein v. Freedman, 2014 ONCA 446 at para. 21; 131843 Canada Inc. v. Double “R” Toronto Ltd. (1992) 7 C.P.C. (3d) 15 (Ont. Gen. Div., per Blair J., as he then was) at p. 17, approved in Murano v. Bank of Montreal, 1998 ONCA 5633, (1998) 41 O.R. (3d) 222 (C.A.) at p. 244.

[10] Trudel v. Trudel, 2010 ONSC 5177.

[11] Stevens v. Stevens, 2012 ONSC 6881, at paras 22 and 23, aff’d, 2013 ONCA 267.

[12] DePace v. Michienzi (2000), 2000 ONSC 22460, [2000] O.J. No. 4436 (Ont. Fam. Ct.), at paragraph [22]; Riha v. Riha (2001), 107 A.C.W.S. (3d) 251, [2001] O.J. No. 3211, 2001 CarswellOnt 2770 (Ont. Fam. Ct.). Domb v. Domb, 2002 ONSC 45568, para. 4; Reisman v. Reisman, [2007] O.J. No. 5538 (S.C.J.) at paras. 2-3, aff’d [2008] O.J. No. 1843.

[13] DePace v. Michienzi, supra, at para. 24.

[14] Biant v. Sagoo, 2001 ONSC 28137, [2001] O.J. No. 3693 (S.C.) at para. 20

[15] “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.

[16] Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041.

[17] Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041

[18] The principle that costs should not exceed the amount charged was articulated by Corbett J. in Mantella v. Mantella, 2006 ONSC 17337, (2006), 27 R.F.L. (6th) 76 (S.C.J.), subsequently approved by Aitken J., sitting as a Divisional Court judge in Geographic Resources.

[19] First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 2012 ONSC 1359 (S.C.J.)

[20] See Hanis v. University of Western Ontario, 2006 ONSC 23155, [2006] O.J. No. 2763, per Power J.

[21] Mantella v. Mantella, 2006 ONSC 17337, (2006), 27 R.F.L. (6th) 76 (S.C.J.)

[22] Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041

[23] Referring to: Boucher v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579, [2004] O.J. No. 2634 (C.A.) (released June 22, 2004); Moon v. Sher, [2002] O.J. No. 4651 (C.A.) (released November 16, 2004); and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 ONCA 1042, [2005] O.J. No. 160 (C.A.) (released January 24, 2005).

[24] Parsons v. Parsons, 2002 ONSC 45521, at para. 14, Campbell J.

[25] Mooney, at paras. 30-34.