COURT FILE NO.: 176/18
DATE: 2019 04 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Khaterah Rashidi, Applicant
- and -
Ahmad Reshad Saifuddin, Respondent
BEFORE: Lemon J.
COUNSEL: Ms. Siobhan Ann Hanley, Counsel for the Applicant
Mr. Jonathon Krashinsky, Counsel for the Respondent
HEARD: In Writing
costs ENDORSEMENT
The Issue
[1] On March 8, 2019, I made an interim order dealing with custody and mobility. In the end result, I ordered Ms. Rashidi to return the two young children from Ottawa to Guelph. She had left with the children without notice to Mr. Saifuddin. Of significance, my ruling contains the following paragraphs:
Ms. Rashidi acknowledges that she exercised “self-help” by moving to Ottawa without notice to Mr. Saiffuddin and delayed notice to his lawyer. She says that she had to leave in such a fashion given her circumstances and the new employment. In my view, her conduct shows that she will not likely facilitate access
Ms. Rashidi has listed a number of activities that she has already involved the children in Ottawa. She arranged to move all of her belongings to Ottawa January 4, 2019. She has been able to arrange an apartment, the children’s activities including Kumon Mathematics, guitar lessons, swimming lessons and Islamic studies. Based on Ms. Rashidi’s plan, those activities will be a further barrier for the children’s access to their father.
I do not have the full details of Mr. Saifuddin’s living circumstances. Although he says that he was involved with the children, he was also employed on a full-time basis. On that record, I am not in a position to simply order custody of the children to him. In those circumstances, the children should remain in the primary residence of Ms. Rashidi, at least until both parties can put forward a plan in the City of Guelph.
In all of the circumstances, I find that it is not in the best interests of the children to move to Ottawa on an interim basis.
On the materials before me, I am not satisfied that the children are at risk in the care of Mr. Saifuddin. Accordingly, he shall have access to the children pending further order of the Court, every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. I do not suggest that this is enough access; however, it is the best that I can do given the uncertain circumstances forced upon me by Ms. Rashidi’s unilateral move to Ottawa. Mr. Saifuddin’s access shall occur in Guelph commencing Friday, March 15, 2019
[2] Mr. Saifuddin submits that he was successful and he seeks costs in the amount of $25,551.76 on a full recovery basis.
[3] In response, Ms. Rashidi says she was successful and seeks costs in the amount of $55,480.13.
Authorities
[4] 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]
[5] 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.
[6] 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, 2004 CanLII 14579 (C.A.), 71 O.R. (3d) 291, at para. 24.)
Analysis
[7] From time to time, there can be a dispute as to who is the most successful party. In some cases, each party has some success in some areas. However, I would suggest to counsel that a litmus test of success might be their own client’s response to the result. I suspect that when Ms. Rashidi was advised that the children needed to be returned from Ottawa, she would not think that she was successful. And she would be correct. She was unsuccessful. Mr. Saifuddin was successful. He is presumptively entitled to costs and she is not.
[8] That said, Mr. Saifuddin wished to have custody of the children. He was not entirely successful in that request.
[9] This motion was essentially first brought in October of 2018. The Bill of Costs includes an account dated in September, totalling $5,644.28. I am to determine costs of this motion, not for everything undertaken to date.
[10] The motion required a total of four attendances. On two occasions, the matter could not be dealt with on a regular motions date. In an effort to resolve the issue, the parties attended at a settlement conference. Finally, the matter was argued before me as a long motion. Accordingly, there was significant work to be done by Mr. Saifuddin’s counsel.
[11] There were a total of 18 affidavits put before the Court. That generates a substantial amount of work.
[12] Within this series of motions, there was also an issue with respect to the sale of the matrimonial home. That involved work to be done, but was not an issue to be resolved by me. On a review of the Bill of Costs filed by Mr. Saifuddin, some of the work dealt with that real estate issue. That amount should not be included.
[13] Ms. Rashidi was wrong to take the children to Ottawa in the fashion that she did. That conduct is unreasonable and should be discouraged.
Result
[14] Taking all of those factors into consideration, I order Ms. Rashidi to pay costs fixed in the amount of $15,000.00.
Justice G.D. Lemon
Date: April 23, 2019
COURT FILE NO.: 176/18
DATE: 2019 04 23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Khaterah Rashidi
Applicant
– and –
Ahmad Reshad Saifuddin
Respondent
COSTS ENDORSEMENT
Lemon, J
Released: April 23, 2019