Court File and Parties

COURT FILE NO.: FC-18-700 DATE: 2018/12/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mehdi Hamdad, Applicant AND Rachel Seeney, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Elisabeth Sheppard, Counsel, for the Applicant Steve Duplain, Counsel, for the Respondent

HEARD: In writing

Endorsement

[1] On November 22, 2018, the Court rendered an interim order expanding the Applicant father’s access to his two year old daughter, Rowan.

[2] If the parties were unable to agree on the issues of costs, they were to provide the Court with submissions.

[3] Having reviewed the parties’ respective submissions, bill of costs and offers to settle, the Court orders that the Respondent mother pay to the father an amount of costs of $1000 within nine months.

Father’s Position

[4] The father submits that the mother was being unreasonable with respect to access as she was proposing access every weekend knowing that he needs to work on some weekends. She suggested a maximum of 6 hours on Saturday or Sunday and that the parties await the report of the Office of the Children’s Lawyer (OCL) before determining whether to implement overnight visits. However, the mother did not bring a motion for the involvement of the OCL so this issue was not even properly before the Court for adjudication.

[5] Pursuant to a without prejudice interim consent order dated June 28, 2018, the father had three hours on Saturday or Sunday every weekend, two Skype calls per week (for 10 minutes each) and access was not permitted to take place at the paternal grandmother’s place. The father’s motion was necessary in order to expand his access with a gradual increase to overnights.

[6] In addition, the Court set a date for argument for October 30, 2018 and since the mother had not filed her motion materials in accordance with the timelines established by the Court, the matter was adjourned to November 22, 2018. The father submits that this impacted on his time to respond and caused delay.

[7] The father submits that he was mostly successful as up to the last minute the mother was unreasonable in that she maintained the position that the father was only entitled to 3 hours either Saturday or Sunday, supervised in a public place. Instead, he obtained an order permitting him two 7-hour days on an every second weekend basis and building up to overnight visits in April 2019. He also obtained holiday time.

[8] He seeks costs on a full indemnity basis in the amount of $8,151.32.

Mother’s position

[9] The mother submits that there was divided success as the father was requesting immediate overnight visits, an increase to two overnight visits commencing in January 2019 and allowing him to remove the child from the daycare early with 4 days’ notice and a full holiday schedule.

[10] The mother believed that the child was not ready for overnight visits as the father had not exercised access on a consistent manner for the past several months.

[11] The motion originally scheduled for October 30, 2018 was requested to be adjourned due to a delay in preparation of materials and filing of the same on behalf of the mother.

[12] Neither party was successful in obtaining an order more favourable than their offers to settle, and the decision was more in line with the mother’s offer as overnight visits will not start immediately nor did the Court order a full holiday schedule. Therefore, there should be no costs or alternatively, she should be awarded some costs.

Legal principles

[13] In Mattina v. Mattina 2018 ONCA 867, the Court of Appeal confirmed the purposes of costs: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) Family Law Rules, O. Reg. 114/99 (the “FLRs”).

[14] Subrule 24(1) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court). To determine whether a party has been successful, the Court should take into account how the order compares to any settlement offers that were made. Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).

[15] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. Jackson v. Mayerle, 2016 ONSC 1556, para. 66.

[16] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

[17] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141.

[18] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding.

Analysis

[19] The FLRs provide that there is a presumption that the successful party is entitled to costs. The Court finds that there has been divided success as neither party was successful in obtaining an order in line with their position or offer to settle. The mother was successful in that there was a delay in implementing overnight (and only if he does not miss three visits).

[20] However, the father was forced to bring this motion to gain some meaningful time with Rowan. Although the mother was concerned with some lack of consistency by the father to the child, there were no parenting issues that suggest that the father was neglectful in his parenting skills. The mother should have been more open to access time and not wait until the eve of the motion to consider expansion of his time with Rowan.

[21] Pursuant to Rule 24(6) of the FLR’s, if success is divided, the court may apportion costs as appropriate.

[22] On that basis, the Court finds that the father is entitled to some costs.

[23] Pursuant to Rule 24(12) of the FLRs, the Court considers the following:

Importance, complexity or difficulty of the case: The issue was not complex but certainly extremely important as the issue deals with a young child and his relationship with his father.

Reasonableness of each party’s behavior The Court is not prepared to consider costs against the mother due to her lack of preparedness for the motion originally scheduled in October 2018. However, the Court does note that the delay of almost one month caused a delay in implementing a more meaningful schedule for Rowan with his father.

Lawyer’s Rate

[24] The rate of the father’s lawyer is reasonable given her call to the Bar in 2015.

[25] I find that the time spent appears to be on the high side given the nature and lack of complex issues in this matter.

Other factors

[26] In granting the adjournment on October 30, 2018, Justice Shelston did not address the issue of costs. Rule 24 (10) mandates that the Court promptly deal with the issue of costs in each step in the process the issue of costs or reserve the decision for determination at a later stage in the case. Therefore, costs of that appearance will not be considered.

[27] Rule 24 was amended to permit the Court to postpone the determination of costs to a later stage. This rule amendment makes absolute sense in light of the fact that at a hearing the Court may not have a full picture of the matter in determining who really is the successful party is given the dynamics of the litigation.

[28] Regarding the impecuniosity of the mother and her limited funds, and being on Legal Aid assistance, the father produced a contract letter dated June 2018 indicating her salary in the $51,000 range and hence this is not a factor here.

Conclusion

[29] Although the parties did not achieve full success, I find that the father was more successful as he was he was able to obtain increased meaningful time with his daughter which permits him to work alternate weekends and he has increased access over time without the condition of a report from the OCL.

[30] The award of costs should be proportional, fair and reasonable in all the circumstances.

[31] Given all the above, the Court orders the mother to pay costs to the father in the amount of $1000 within nine months.

Justice A. Doyle Date: 2018/12/19