Court File and Parties
COURT FILE NO.: 2267/11 DATE: 2019/04/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Abdul Ziad Hajifazul Applicant
Bruce A. Macdonald, for the Applicant
- and -
Marjorie Elisabeth Dickson Respondent
James Stengel, for the Respondent
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] I heard a contempt motion brought by the applicant against the respondent at Welland, Ontario on December 20, 2018 and completed on February 8, 2019. The hearing consisted of oral evidence, as well as affidavit evidence. I rendered my decision on March 6, 2019 dismissing the applicant’s contempt motion. I have now received and reviewed costs submissions of both parties.
[2] The respondent seeks her costs against the applicant in the amount of $9,447 (80% of $11,809) all-inclusive on a substantial indemnity basis.
[3] The applicant seeks his costs as against the respondent fixed in the amount of $3,000 all-inclusive.
[4] I found that this case fell within those cases where missed access was a result of the respondent mother’s concern for the wellbeing of the child Zain.
[5] The court did not accept the applicant father’s allegations that the mother failed to provide insulin, or provided expired insulin, and/or did not provide him with supplies, and as a result he was not able to test the child’s blood sugar levels.
[6] As a result of the applicant father’s failure to administer insulin to the child, the respondent mother cancelled the access visit of July 24, 2018. The balance of the remaining three visits were cancelled as a result of policies and procedures of Pathstone pending a Family & Children’s Services investigation which was started at the request of the respondent mother.
[7] Once the respondent mother was satisfied that the applicant father would continue to administer insulin to Zain, access resumed. In fact, the respondent mother volunteered to provide the father with makeup access time, which the father declined.
[8] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 provides that a successful party is entitled to costs. The respondent is the successful party and is, therefore, entitled to costs.
[9] Rule 24(12) of the Family Law Rules, O. Reg. 114/99 sets forth some considerations for the court in setting the costs amount.
[10] As has been noted, this issue of contempt was an important one, given that a contempt finding could result in criminal sanctions for the respondent.
[11] Further, the applicant father was not cooperative in that I found that he failed to execute a release of the Pathstone notes. The respondent mother readily executed the release.
[12] Further, after the reinstatement of access, once the applicant father confirmed he would administer insulin to Zain, the respondent mother offered makeup access. The applicant father declined.
[13] The applicant father made serious but unsubstantiated allegations against the respondent mother. The applicant father’s limited financial resources does not make him immune from court costs. Parties must be held accountable for their behavior and choices.
[14] The Court of Appeal has recently ruled in Beaver v. Hill, 2018 ONCA 840, that costs awards are discretionary. Further, two of the most important principles in the exercise of discretion are reasonableness and proportionality. The Court further noted in para. 12 of Beaver v. Hill as follows:
“As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”
[15] I find the respondent’s counsel’s bill of costs, both with respect to work done and hourly rates and disbursements, reasonable.
[16] Having considered the principles enunciated regarding costs, Rules 24(1), 24(12), as well as 24(8) of the Family Law Rules, O. Reg. 114/99, I conclude that this is a case where substantial costs must be awarded to the respondent. I fix those costs at $8,857 all-inclusive and payable by the applicant father to the respondent mother within 30 days.
[17] There is no basis upon which costs can or should be awarded to the applicant father.
Orders Made
[18] The following orders are made:
- The applicant shall pay to the respondent costs fixed at $8,857 (which represents 75% of the total costs), all-inclusive within 30 days.
- The claim for costs of the applicant is dismissed.
Maddalena J.