COURT FILE NO.: FC-15-1115
DATE: 2019/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Noor Hasan A. Abdulhadi
Applicant
– and –
Ali Ahmad
Respondent
Odette Rwigamba, Counsel for the Applicant
Tom Curran, Counsel for the Respondent
HEARD: In Writing
Decision on Costs
Justice Engelking
[1] A trial was held in this matter on May 29 to 31, June 1 and June 4, 2018. Reasons for Judgment were released on January 9, 2019. Written submissions on the issue of costs were invited and received from both parties.
Positions of the Parties
[2] The Applicant seeks costs on a full indemnity basis in the amount of $52,218.97. She submits that she was the successful party in the trial, that she is presumptively entitled to an order of costs, and that the Respondent acted in bad faith.
[3] The Respondent submits that he has been the more successful party on the issues of significance in the trial, namely custody and non-removal of the child from Canada without consent or court order, and that the Applicant has acted in bad faith. He seeks an order of costs on a partial indemnity basis of $11,111.11.
The Law
[4] The Ontario Court of Appeal has held that the Family Law Rules on costs 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.”[^1] The new Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.[^2] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.[^3] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.[^4]
Analysis
[5] There is little doubt that there was divided success by the parties at trial. Mr. Ahmad was the successful party on the issue of custody. Ms. Abdulhadi was seeking an order of sole custody of the parties’ child, Mehdi, and exclusive decision making with respect to him. I made an order of joint custody of Mehdi, with final decision making residing with Ms. Abdulhadi if, after consulation, the parties are unable to make a joint decision. I also declined to dispense with Mr. Ahmad consent for Ms. Abdulhadi to travel to Iraq with Mehdi. Mr. Ahmad submits that, while Ms. Abdulhadi may have been more successful on the financial issues, these were the issues of most import, and should be recognized as such.
[6] As I indicated in my Reasons for Decision, primary residence of Mehdi, Mr. Ahmad’s parenting time with him and child support had ceased to be issues by the commencement of the trial.
[7] Ms. Abdulhadi was successful on the issues of spousal support, equalization of the parties net family properties (though Mr. Ahmad was successful in arguing for an unequal division), and on the existence of a valid Maher.
Offers to Settle
[8] Both parties made Offers to Settle. Ms. Abdulhadi’s was dated May 25, 2018. In it, she offered sole custody of Mehdi and major decision making to her. She did include in her offer the following provision: “Neither parent shall travel with the child to countries that are non Hague convention signatories without written consent of the other parent or a court order.” Ms. Abdulhadi also offered that the Respondent pay spousal support of $1295 per month to be reviewed no later that June 30, 2022. Ms. Abdulhadi’s offer included a provision that Mr. Ahmad maintain life insurance to secure support in the sum of $200,000. With respect to equalization, Ms. Abduhadi’s offer provided for Mr. Ahmad to pay her an equalization payment of $5000 and $26,000 for the Maher. She also offered to set aside the costs order of $4,805.55 from February of 2016 once Mr. Ahmad paid those amounts.
[9] Mr. Ahmad’s sent two undated Offers to Settle, one in relation to the parenting and support issues and another in relation to equalization. Mr. Ahmad offered that the parties share parenting, primary residence to Ms. Abdulhadi with specified parenting time to him to which the parties ultimately agreed. With respect to spousal support, Mr. Ahmad offered to pay Ms. Abdulhadi $1,100 per month to be varied upon a material change of circumstances or application brought not less than three years after acceptance. He also offered to maintain life insurance to secure support at 1.5 times his annual salary. With respect to the issue of equalization, Mr. Ahmad’s offer was that no equalization payment would be made by either party to the other.
[10] The decision of the court was as or more favourable to Ms. Abdulhadi on the issues of spousal support ($1295) per month not reviewable before June 30, 2011) equalization ($8,775.00) and the issue of the Maher ($16,453.89). The decision was as or more favourable to Mr. Ahmad on the issue of custody (joint).
Behaviour of the Parties
[11] Ms. Abdulhadi alleges that Mr. Ahmad’s behaviour amounted to bad faith as he admitted to using “pressure tactics” on Ms. Abdulhadi pre-separation in an effort to get her to change her attitude or behaviour towards him. She also pointed to the fact that Mr. Ahmad sold the matrimonial home out from under her and Mehdi with neither her consent nor knowledge.
[12] Mr. Ahmad alleges that Ms. Addulhadi’s behaviour of unilaterally removing Mehdi from the matrimonial home without his knowledge and keeping Mehdi from him for several weeks at the commencement of the proceedings was improper and should not be sanctioned by the court. He also expressed frustration with the conduct of the trial, submitting that two days of it were wasted in leading evidence to disparage Mr. Ahmad, notwithstanding that the issues of primary residence and his parenting were not pertinent to the trial.
[13] Frankly, the behaviour of both parties left something to be desired in this case. I heard no evidence which supported that Mr. Ahmad presented a risk to Mehdi, and Ms. Adbulhadi provided no reasonable explanation over the course of the trial for the self-help remedies that she took at separation. Additionally, Ms. Abdulhadi had never amended her pleadings to include her claim for a Maher prior to trial, nor did she provide some of the required documentation to support that claim in a timely manner. While I permitted her to do so belatedly, a costs award in this regard is not merited.
[14] Mr. Ahmad, for his part, did sell the matrimonial home contrary to his obligations under the Family Law Act, and he did disburse the proceeds of sale as he saw fit, having no regard for the fact that Ms. Abdulhadi may have had a claim in relation to them.
[15] Although I find that Ms. Abdulhadi met with more success on some of the issues, given the behaviour of both parties, and their overall divided success at trial, I make no order as to costs under all of the circumstances of this case.
Madam Justice Engelking
Released: March 4, 2019
COURT FILE NO.: FC-15-1115
DATE: 2019/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Noor Hasan A. Abdulhadi
Applicant
-AND-
Ali Ahmad
Respondent
REASONS FOR JUDGMENT
Engelking J.
Released: March 4, 2019
[^1]: Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [^2]: Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [^3]: Ibid. [^4]: A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.