Court File and Parties

Court File No.: FS-13-77585-01 Date: 2019 03 25 Superior Court of Justice - Ontario

Re: Caterina Cannone-Haddad, Applicant - and - Hani Haddad, Respondent

Before: Lemon J.

Counsel: Mr. Ryan Gillissie, Counsel for the Applicant Mr. Frank A. Mendicino, Counsel for the Respondent

Heard: In Writing

Costs Endorsement

The Issue

[1] Ms. Cannone Haddad brought a motion to strike Mr. Haddad’s pleadings or, in the alternative, for an order that he post security for costs. She was unsuccessful on both. Mr. Haddad now seeks costs of $16,861.86 on a full recovery basis. Ms. Cannone Haddad submits that there should be no order for costs or they should be offset against Mr. Haddad’s child support arrears.

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.

[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,

b. the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

c. the reasonableness of any offer the party made; and

d. 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 removed]

[3] Just because an award of costs may be on a full indemnity basis does not mean that the successful party is entitled to whatever costs were incurred. The court assessing costs is still required to consider all of the factors in such an award. United Soils Management Ltd. v. Mohammed, 2019 ONCA 128.

[4] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”.(See: Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, at para. 24.)

Analysis

[5] Mr. Haddad was successful; he is presumed to be entitled to his costs.

[6] This was an important matter to both parties. Ms. Cannone Haddad says that Mr. Haddad is in arrears of child support to the extent of almost $50,000.00. Mr. Haddad says that he cannot afford the amount of support to which he earlier agreed. If Ms. Cannone Haddad were successful on either of her requests, his motion to change would likely come to an end.

[7] The issue was whether Mr. Haddad had properly produced what he was required to produce. Such motions are expensive to litigate. Mr. Haddad produced information as the motion process unfolded. I found that, by the time the motion was argued, he had produced what was necessary. However, it was still necessary for the motion to be filed, if not argued.

[8] Mr. Haddad made an offer to settle the motion. However, it included a term that the proceeding be removed from the trial list. At the end of the motion, I imposed a time line to ensure that the matter stayed on track to an early trial date. Accordingly, the result was arguably not as good for Mr. Haddad as he proposed.

[9] The amount now requested by Mr. Haddad could not reasonably be expected. On the basis of Mr. Haddad’s submissions before me, he could not afford such a bill. There would be no reason to expect that Ms. Cannone Haddad should have to pay such an amount.

[10] On a review of the Bill of Costs, the work done appears to be excessive. For only one example, Mr. Haddad’s counsel proposes that it took him almost an hour to write two letters and an email. This is the work of an assistant; not that of a lawyer of 35 years’ experience. If it really took that long, counsel would be well advised to download this work to someone who could do it more efficiently.

[11] While Ms. Cannone Haddad was unsuccessful, there is nothing here to support costs on a full recovery basis. I do not find any bad faith on the part of Ms. Cannone Haddad. As I said above, it appears that it was necessary to bring the motion to get Mr. Haddad to produce what was required.

[12] There were two adjournments; each says the other was at fault for those adjournments. I cannot make that determination.

[13] Both parties are in financial difficulty. Mr. Haddad had not been paying support for the two children of the marriage. It would be odd indeed for Ms. Cannone Haddad to pay costs while child support is likely outstanding.

Result

[14] Taking all of those factors into consideration, Ms. Cannone Haddad shall pay costs in the amount of $5,000 payable after trial or other resolution of the outstanding issues.

Justice G.D. Lemon Date: March 25, 2019