Court File and Parties
Court File No.: 4373/15 Date: 2019-04-24 Superior Court of Justice - Ontario
Re: Sara Zehra Salim, Applicant And: Syed Adeel Safdar, Respondent
Before: The Honourable Madam Justice M. McLaren
Counsel: Mr. K. Millikin, for the Applicant until September 24, 2018 Mr. M. Clarke, for the Applicant commencing September 24, 2018 Self-Represented Respondent
Heard: March 18, 2019.
Costs Endorsement
[1] Submissions as to costs were argued in this matter on March 18th, 2019.
[2] The costs are in regard to a lengthy proceeding that resulted in my order of January 25th, 2019.
[3] The litigation commenced when an Application was issued in April 2015.
[4] The trial was commenced in May 2018. The last day of trial was December 6th, 2018.
[5] For ease of reference, I will refer to the parties as I did in the decision dated January 25th, 2019, with the Applicant (and mother of the child) referred to as Sara, and the Respondent (and father of the child) referred to as Adeel.
[6] The issues before me at the trial were divorce, custody, access, child support, spousal support, and payment of a mehr.
[7] The issues that dominated the litigation and the trial were custody and access of the parties’ child who was four years old as of the trial.
[8] A significant amount of time at trial was spent on the issue of Sara’s allegations of domestic violence.
[9] The parties were considered separated as of September 30th, 2014. On that date, Sara was taken to the hospital in Hamilton with a jaw that was broken in two places. She weighed 100 pounds. In addition to her broken jaw and low weight, Sara left the marriage with a damaged ear (described as “cauliflower ear”), dozens of scars, scratches and burn marks including one burn mark in the shape of an iron, and a weakened arm. In addition, she was isolated from her friends and family.
[10] The parties only lived together on a full time basis for about one year.
[11] It was Sara’s evidence that all of the injuries were caused by Adeel, his mother and his brother, all of whom were charged with several counts of assault. The criminal trial was concluded on December 3, 2018. At that time, a stay of proceeding was granted under section 11(6) and 34(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982.
[12] It was Adeel’s evidence, that all of Sara’s injuries were self-inflicted and that she had psychiatric illnesses and engaged in self-harming. It was also his position that Sara was intentionally isolated from her parents and other family members and friends because she thought they were interfering in her life and she did not wish to see them or speak to them.
[13] The trial proceeded over 51 days from May 2018 to December 2018. Some of these days were short days and I estimate the overall number of trial days to be, about 45 days with short appearances factored in.
[14] In my reasons released on January 25, 2019, I accepted the evidence of Sara regarding the domestic violence and I concluded that Sara suffered great abuse at the hands of Adeel, his mother and his brother. As a result of Adeel’s actions and the poor choices he made, I gave Sara sole custody of the child. This meant that the child would be going to live with Sara in Rochester, New York, instead of living with her father in Hamilton, Ontario.
[15] Because of my concerns about Adeel’s actions and additional concerns that he would try to sabotage Sara’s relationship with the child, I granted only supervised access, for two to three hours once per month in Rochester. It was my view that he tried to minimize Sara’s time with the child since the child’s birth, and that he has tried to sabotage her relationship with the child. For example, he said that if he sees signs of Sara’s “psychiatric illnesses” returning he will come back to court to ask that her access be supervised again. It was my interpretation of the evidence that Sara never had any psychiatric illnesses.
Sara’s Position
[16] The counsel of record at the beginning of the trial was Mr. Millikin. He was unable to continue the trial as of the summer of 2018 for health reasons. Mr. Clarke took over the file as of September 24, 2018.
[17] There were gaps in the trial (which was set for 20 days) due to the change in counsel, previously planned vacations and for periods of time when the criminal trial was resuming.
[18] Mr. Clarke argued the issue of costs for both he and Mr. Millikin. He is requesting a total of $468,565.72. This is $308,907.32 for Mr. Millikin and $159,658.40 for Mr. Clarke’s time on the file.
[19] I was provided with Client Ledgers from both counsel and two bills of costs.
[20] The ledgers began with services as of March 15th, 2017 for Mr. Millikin, and as of August 19th, 2018 for Mr. Clarke, at which time there were no further entries for Mr. Millikin that involved fees.
[21] Initially there was not much activity on the Family Law file as there was a child protection file in progress that took priority. However, in a decision released January 23rd, 2017, Justice Lafrenière released a decision allowing the Children’s Aid Society (C.A.S.) to withdraw. As such, the request for costs for all services as of March 2017 is appropriate as being part of the Family Law proceeding.
[22] Sara is seeking full indemnity for her costs as the successful party. She was successful in all the main issues as follows:
i. I granted her sole custody.
ii. I gave Adeel only very limited supervised access.
iii. I ordered Adeel to pay Sara the Mehr in the amount of $25,000.00 in U.S. funds within 60 days.
iv. I ordered no spousal support for Adeel.
v. I gave a restraining order.
[23] Sara was completely successful on the above five claims, based on positions taken by the parties.
[24] I am less able to determine who was successful on the issue of child support. At trial, Sara requested child support based on an income of $126,000.00. Adeel requested that it be based on the parties’ actual incomes. His actual income was, at that time, based on a minimum wage job at a fast food restaurant. I ordered support based on an income of $25,480.00. The results were clearly closer to what Adeel proposed but I did not receive Offers to Settle which would have shown what amount the parties would have been prepared to settle for.
[25] It was argued on behalf of Sara that full recovery on the issue of costs can be ordered pursuant to Family Law Rule 24(8) which says:
“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.”
[26] The bad faith referred to was the fact that I found Adeel and family members to have subjected Sara to extreme abuse and isolation during the nine months she lived with them. Throughout this lengthy and costly litigation, Adeel maintained his position that Sara caused her multiple injuries herself and had psychiatric illnesses. It was suggested that this was bad faith on the part of Adeel and that he clearly lied about his treatment of Sara throughout the trial.
[27] The issue of whether or not there was abuse was the central issue behind the custody and access issues. Case law was provided and reviewed on the topic of bad faith.
[28] It was also argued on behalf of Sara, that I have discretion in regard to enforcement of costs as part of support, by the Family Responsibility Office (F.R.O.), regardless of the fact that the dominant issue that took the most time was custody. Case law was provided and reviewed that supports this position. Mr. Clarke suggested that there is a risk that Sara will not be able to collect any costs ordered because Adeel could declare bankruptcy.
[29] Costs would not be discharged by a bankruptcy however if they are enforced as support. Mr. Clarke acknowledged that Adeel could possibly lose his driver’s licence and passport as a result of the enforcement but said that this would be the result of Adeel’s own actions.
The Law
[30] I was referred to the following authorities and case law by counsel for Sara:
A. LEGISLATION
- Rule 24 of the Family Law Rules (O. Reg. 114/99).
- s.1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 S.O. 1996, c. 31.
B. CASE LAW
BAD FAITH
- S.(C.) v. S.(M.), 2007 CarswellOnt 3485 (SCJ).
- A print out showing judicial treatment of S v. S as of March 8th, 2019.
- McAllister v. Norman, 2014 CarswellOnt 12017 (SCJ).
- Scalia v. Scalia, 2015 CarswellOnt 9780 (OCA).
ENFORCEABILITY OF COSTS AS SUPPORT
- Writer v. Peroff, 2006 CarswellOnt 6438
- Wildman v. Wildman, 2006 CarswellOnt 6042 (OCA).
- Antic v. Antic, 2011 CarswellOnt 8457 (SCJ) (Costs).
- Antic v. Antic, 2011 CarswellOnt 7945 (SCJ) (Trial judgment).
- Clark v. Clark, 2014 CarswellOnt 2477 (OCA).
- Clark v. Clark, 2012 CarswellOnt 4582 (SCJ).
- Grenier v. Imbeault, 2019 CarswellOnt 45 (SCJ).
[31] Rule 24 reads as follows:
RULE 24: COSTS
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY
(2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).
COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY
(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).
SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY
(4) 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. O. Reg. 114/99, r. 24 (4).
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).
DIVIDED SUCCESS
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
ABSENT OR UNPREPARED PARTY
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice. O. Reg. 114/99, r. 24 (7); O. Reg. 235/16, s. 4 (1).
BAD FAITH
(8) 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. O. Reg. 114/99, r. 24 (8).
COSTS CAUSED BY FAULT OF LAWYER OR AGENT
(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,
(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;
(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;
(c) order the lawyer or agent personally to pay the costs of any party; and
(d) order that a copy of an order under this subrule be given to the client. O. Reg. 114/99, r. 24 (9).
DECIDING COSTS
(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.
(10.1) Revoked: O. Reg. 298/18, s. 14.
SAME
(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.
SETTING COSTS AMOUNTS
(12) In setting the amount of costs, the court shall consider,
(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. O. Reg. 298/18, s. 14.
SUPPORTING MATERIALS
(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.
ORDER FOR SECURITY FOR COSTS
(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:
- A party ordinarily resides outside Ontario.
- A party has an order against the other party for costs that remains unpaid, in the same case or another case.
- A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
- There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
- A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13).
AMOUNT AND FORM OF SECURITY
(14) The judge shall determine the amount of the security, its form and the method of giving it. O. Reg. 114/99, r. 24 (14).
EFFECT OF ORDER FOR SECURITY
(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise. O. Reg. 114/99, r. 24 (15).
FAILURE TO GIVE SECURITY
(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14.
SECURITY MAY BE CHANGED
(17) The amount of the security, its form and the method of giving it may be changed by order at any time. O. Reg. 114/99, r. 24 (17).
PAYMENT OF EXPENSES
(18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.
[32] Section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act reads as follows:
“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,
(a) the payment of an amount periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event,
(b) a lump sum to be paid or held in trust,
(c) payment of support or maintenance in respect of a period before the date of the order,
(d) payment to an agency of an amount in reimbursement for a benefit or assistance provided to a party under a statute, including a benefit or assistance provided before the date of the order,
(e) payment of expenses in respect of a child’s prenatal care and birth,
(e.1) payment of expenses in respect of DNA testing to establish parentage,
(f) the irrevocable designation, by a spouse who has a policy of life insurance or an interest in a benefit plan, of the other spouse or a child as the beneficiary, or
(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance,
and includes such a provision in,
(h) a domestic contract that is enforceable under section 35 of the Family Law Act, or
(i) a notice of calculation that is enforceable under section 39 of the Family Law Act. (“ordonnance alimentaire”) 1996, c. 31, s. 1 (1); 1999, c. 6, s. 26; 2002, c. 13, s. 57 (1)
[33] I will review the case law.
[34] S.(C.) v. S.(M.) was a 2007 Ontario Superior Court of Justice (SCJ) case. Following an 18 day trial, costs were awarded to the mother in the amount of $320,198.25, which was on a full recovery basis. The court found that the father acted in bad faith over a long period of time. Justice Perkins noted that the father in this case “waged a campaign against the mother both through and with the children, to alienate the children from her, a form of emotional harm to the children and to her and to cause her emotional distress.” Other behaviour by the father that was of concern was not found to be bad faith.
[35] The order also included a direction that $16,893.18 of the costs be considered as support related to be enforced by the F.R.O.
[36] Counsel for the Applicant pointed out paragraph 17 of Justice Perkin’s order which reads as follows:
17 In order to come within the meaning of bad faith in rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other part or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.
[37] Mr. Clarke is of the view that Mr. Safdar engaged in bad faith to an extent that he must be taken to know that it would cause Sara major financial harm.
[38] McAllister v. Norman is a 2014 Ontario Superior Court of Justice case. In this case the mother was ordered to pay costs after denying access to the father. She was given leave to move with the child after assuring the court that she could facilitate access and access was then not facilitated by the mother and she was ordered to move the child back. The court found her behaviour to be unreasonable but not necessarily bad faith. Justice Campbell said at paragraph 11:
11 Although my findings support a view that the Respondent, by her actions and inaction, and her obstruction of an antagonism towards the Applicant did indeed act unreasonably. I am unpersuaded that her tactics rise to the level of bad faith as defined in the case law (for example, see Brown v. Brown, 2004 CarswellOnt 5012 (Ont. S.C.J.)). One needs more than bad judgment. In that case the court found “bad faith” based on mean-spirited attacks against a vulnerable spouse intentionally designed to operate as a debilitating tactic).
[39] Scalia v. Scalia is a 2015 Ontario Court of Appeal case. This case was provided by Sara’s lawyer because it confirmed the test of bad faith set out by Justice Perkins in S. v. S. Speaking for the Court of Appeal, Justice Weiler said at paragraph 68:
68 The application judge was obliged to identify and apply the legal test governing bad faith in this context. This he did not do. The legal test for bad faith in the family law context, as set out in S.(C) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. S.C.J.), at para. 17, aff’d 2010 ONCA 196, 262 O.A.C. 225 (Ont. C.A.), is that the impugned behaviour must be shown to be carried out with the “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.
[40] Writer v. Peroff is a 2006 Ontario Superior Court of Justice case. In this case, the Applicant was successful in her motion to strike the Respondent’s pleadings. The Respondent’s conduct was considered egregious. He did not provide financial disclosure.
[41] In providing costs on a full recovery basis, Justice Backhouse ordered the $12,500.00 to be enforced by the F.R.O. as an evidence of support.
[42] Wildman v. Wildman is a 2006 Ontario Court of Appeal case. The trial involved a large number of issues, including custody, access, equalization of property, spousal support, and child support. Costs were ordered to be enforced by the F.R.O.
[43] The Court of Appeal upheld this decision to have costs enforced by the F.R.O., although in the Wildman case it was noted that the principal issue at trial was spousal and child support.
[44] Speaking for the Court, Justice MacPherson said at paragraph 59:
59 The principal issue at trial was spousal and child support. In any event, I agree with Thomson J.’s observation in Stancati v. Stancati (1984), 49 O.R. (2d) 284 (Ont. Prov. Ct.) at 287: “It seems to me to be both impractical and inappropriate to suggest that this court should attempt to dissect cost awards in order to determine which part of the award relates to the support aspect of the proceedings.” I also note that Drygala v. Pauli was a multi-issue matrimonial case in which this court upheld the trial judge’s order that all costs be enforceable by the Family Responsibility Office.
[45] Antic v. Antic is a 2011 Ontario Superior Court of Justice case. At trial, the Respondent mother was entirely successful on the important issues. She was not successful on the “comparatively minor aspect of the equalization payment.” The key issues were custody and access. The Applicant’s behaviour was found to be unreasonable and two aspects of bad faith were found. One was his professed intent to act in such a way as to cause financial hardship and another was his refusal to pay support for six months when he had an income of over $69,000.00.
[46] Costs were ordered in the amount of $56,155.94, and made enforceable by the Family Responsibility Office, even though the main issues were custody and access. Justice Glithero said at paragraph 10:
10 The respondent requests an order that costs awarded to her and made payable by the applicant be enforceable as child support pursuant to section 1(1)(g) of The Family Responsibility and Support Enforcement Act, S.O. 1996, C.31. I think such an order appropriate in this case given the behaviour of the applicant as detailed in my reasons for judgment, and particularly that relating to his failure to pay child support as required, and his professed intent to cause financial harm and hardship to the respondent. Pursuant to the Court of Appeal’s reasoning in Wildman v. Wildman, [2006] O.J. No. 3966 (Ont. C.A.) at paragraphs 52 to 59, I do not propose to dissect the costs award in an effort to determine a proportion thereof attributable to child support. Clearly the main issues were that of custody and access, which are foundation or cornerstone aspects of the eventual disposition with respect to support.
Antic v. Antic
[47] I was also provided with the original trial decision by Justice Glithero dated June 27, 2011. The decision shows that custody and access were the main issues and that the father was shown to have made entries in a journal wherein he threatened to ruin the mother and destroy her in addition to a comment that he wished she was dead.
Clark v. Clark (2012)
[48] This is a 2012 Ontario Superior Court of Justice case. Costs in the amount of $185,000.00 were awarded and they were to be enforced by the F.R.O. as lump sum spousal support. Offers to Settle were served. The Mother was entitled to full recovery of costs after the first Offer and partial indemnity prior thereto.
[49] The trial was in regard to the Father’s Motion for child support from the mother. Justice Conlan pointed out that the father had a history of disobeying court orders, and had attempted to make himself judgment proof. As such, enforcement by the F.R.O. as lump sum spousal support was ordered.
Clark v. Clark (2014)
[50] This is the decision by the Ontario Court of Appeal for the trial in this matter. One of the issues before the Court was whether or not the trial Judge made an error in ordering costs to be enforced as spousal support when spousal support was not even an issue at the trial. The court found that an error was made given that spousal support was not an issue. However, the Court was of the view that the trial judge was able to make such an order, since child support was an issue. As a result, enforcement by the F.R.O. was upheld – speaking for the Court, Justice Cronk said:
“Trial courts have considerable discretion concerning requests that legal costs in a multi issue matrimonial proceeding be designated as support for the purposes of FRO enforcement.”
The court changed the words “lump sum spousal support” to “support” however.
Grenier v. Imbeault
[51] The main issues in this 2019 Ontario Superior Court of Justice case were custody, spousal support, and child support. The Court found that the Respondent engaged in unreasonable behaviour by failing to provide disclosure on two occasions and failing to make an Offer to Settle, whereas the Applicant provided two. The Applicant was awarded sole custody and Justice Shelston rejected the Respondent’s allegations of parent alienation.
[52] Costs were awarded in the amount of $50,000.00 and they were made enforceable by the F.R.O. as child support despite the fact that there were other issues besides support. The Judge agreed with other decisions wherein it was thought to be impractical to dissect court orders to determine how much of the decision and trial time relate to support issues.
[53] Justice Shelston pointed out that there were two advantages of such an order at paragraph 55 he wrote:
55 The advantages of an order under this provision are that the costs award is enforceable by the Family Responsibility Office and the order is not discharged in a bankruptcy by virtue of s. 178(1)(c) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.
Adeel’s Position
[54] Adeel began by pointing out that he has lost a great deal through this litigation. In addition to losing the custody of his daughter, he is in great debt. He believes he owes about $230,000.00 to two lawyers, being his former family law lawyer and his criminal law lawyer. He also owes money to various people, as well as having debt from credit cards and lines of credit with two banks. Although, he hopes to get a good job in his field of science, he is currently working in a fast food restaurant, and his hours vary.
[55] It was also pointed out that he provided all the disclosure that he was required to.
[56] Adeel mentioned that his case was only about 1/3rd of the total trial time. He did not call members of his immediate family to testify because they are “in the midst of a criminal court proceeding” and he did not know how to protect their rights. He is referring to the fact that the Crown is appealing the Ruling to stay the proceeding.
[57] In addition to the financial losses set out above, he lost his job, savings and his parents lost their life savings and home.
[58] In all, he says that he is about $900,000.00 in debt over the Family Law trial and the Criminal Law trial.
[59] Adeel also reminded the Court that in order to keep a minimum relationship with his daughter, he has to drive over the border to go to Rochester and he plans to stay overnight. In order to do this, he will need his driver’s license and passport. He will also need his driver’s license to obtain and maintain employment.
[60] Adeel takes the position that there was no bad faith on his part during the trial and that he was respectful to the Applicant. He pointed out that he voluntarily gave her additional access during the trial. This was a week in July, a week in August, and a week at Christmas. He reminded me that he did not have a lawyer during the trial and this made it difficult for him.
[61] Adeel believes the trial was vastly prolonged because of Sara and that there were delays due to Mr. Millikin’s health issues.
[62] He pointed out that the delays hampered his ability to obtain employment, and further delays were caused and further expenses incurred by the fact that Sara had to obtain new counsel.
[63] Adeel reviewed the cases provided by Sara’s counsel and pointed out that facts were quite different in those cases. For example, in one case the father threatened to ruin the mother financially. There were several examples of bad faith in those cases he suggested, that did not exist in this case.
[64] In contrast to his position that there was no bad faith on his part, Adeel said that Sara behaved unreasonably during the trial, and that she exhibited bad faith. His point is that Sara is trying to stop him from seeing the child. Her position by the end of trial was that he should have no access, and furthermore he believes she is being unreasonable by the delays in getting his supervised access set up.
[65] Adeel also believes that if I order costs to be enforced by the F.R.O. as requested by Sara, it would push him towards homelessness and it would deprive him of his ability to see his child.
[66] Ultimately, Adeel believes that costs should only be ordered on the issue of the Mehr which took up a very minor part of the trial.
[67] Adeel believes that he put forward several Offers to Settle but Sara was not willing to settle. He acknowledged that each of his Offers specified that custody, or the primary residence, would be with him. He did not have any Offers to Settle to give me, and Mr. Clarke said he was not aware of any.
Conclusions
[68] Sara was completely successful on the issue that dominated this trial, namely; custody and access. At the beginning of the litigation she only had supervised access for a few hours per week. At the end of the trial I gave her sole custody. Adeel was given supervised access, once per month for two to three hours in Rochester. I realize that Adeel is struggling financially but I see no reason why Sara should be expected to pay for all her legal expenses for a lengthy trial when she was so successful, and when I found that Adeel treated her in a violent and abusive manner.
[69] The total amount claimed is not surprising or unreasonable given the amount of trial time involved, and the amount of documents and exhibits that had to be reviewed.
[70] Some deductions from the amount claimed are appropriate for the following reasons:
i. I am not in a position to say that Sara was successful on the issue of child support. I received no Offers to Settle and the amount ordered was closer to the amount suggested by Adeel;
ii. There was some time taken up on property issues during the early part of the trial, especially the issue of jewellery, but ultimately both parties agreed that there was no property to equalize;
iii. The client ledgers include times for matters where costs were already dealt with. For example, on June 26th, 2018 Justice Lafrenière ordered Adeel to pay $31,640.00 in costs for the time involved for motions on October 12th, 2016, December 1st, 2017 and December 15th, 2017. However, the request was for full recovery of $65,819.52, so the amount of $65,819.52 should be deducted, with the $4,000.00 for October 12th, 2016 added back in because Mr. Millikin’s client ledger began in March 2017.
iv. It is appropriate to deduct something for some of the time spent due to the change in counsel. I am not of the view that the allowances given to Mr. Milliken to start a little later in the day should be a factor. It was typically only 15 or 20 minutes a day and this was not substantial. I accommodated Adeel when he had a specialist’s appointment and when he needed to prepare for his criminal trial and to attend his criminal trial. Some of the 80 hours Mr. Clarke showed for trial preparation would have been needed even if he were the original lawyer because counsel need to engage in some preparation throughout the trial. Both parties caused some days to be short. One of Sara’s witnesses did not attend and a day was lost, and Mr. Safdar had witnesses who only took half a day and no other witnesses were available.
[71] Some comments are needed on the lack of Offers to Settle. Adeel claims that several were sent on his behalf. He did not produce them and as such I cannot consider them. I also do not know if they were formal Offers to Settle or just proposals. In addition, Adeel said that they all included a provision for him to have custody or primary residence which he was not successful in obtaining.
[72] Since neither party provided an Offer to Settle, I am prepared to consider costs on the issues that were, as Sara’s lawyer said “all or nothing.” In other words, Sara wanted sole custody and so did Adeel. The parties live in different countries so there would be limits on how creative they could be with a proposed schedule. Spousal support was similar. Adeel requested spousal support and Sara requested an order that there be none. She was completely successful on both of these issues. Rule 24(1) specifies that there is a presumption that a successful party is entitled to costs.
[73] The issue of bad faith was raised by both parties during submissions regarding costs. There is no evidence of bad faith on the part of Sara. I accepted her version of events during the trial and I agreed with her that access for Adeel should be minimal. I did not see evidence of Adeel acting in bad faith in terms of disclosure, or how he conducted himself during the trial. However, the case law, referred to earlier herein, shows that bad faith can be found where there is an intention to “inflict harm or deceive” or to “inflict financial or emotional harm.” In this case, Sara incurred legal expenses of over $468,000.00 as of March 2017. She had legal fees prior to that date as well. In addition she estimated that she spent over $80,000.00 for Brayden Supervision Services and hotels for the long period (over 3 years) that she drove to Hamilton every weekend for access and privately retained Brayden Services to supervise the access, and later to supervise the exchanges. For several months the access was in a hotel and Sara had to stay over in the hotel for one or two nights every weekend. These expenses were, to a significant degree, due to the fact that Adeel continued his allegations that Sara had psychiatric illnesses, and engaged in self-harm to the extent that she damaged her left ear, caused burn marks and scars all over her body, left a burn mark in the shape of an iron on the top of her left leg, weakened one of her arms, lost a great deal of weight, broke her jaw in two places, and intentionally isolated herself from her family and friends.
[74] I did not find the evidence of Adeel regarding Sara’s injuries to be credible but I did find the evidence provided by Sara to be credible. I found no evidence at trial that persuaded me to believe that Sara actually had psychiatric illnesses, engaged in self-harm, or intentionally isolated herself from family and friends. Given that Adeel was charged with multiple counts of assault, as was his mother, and to a lesser extent his brother, it would have been more reasonable of him to agree early on to an increase in Sara’s time with the child, including overnight visits in Rochester, and to a change in custody. He has known for a long time, and well before trial, that a psychiatrist was going to testify and say that she did not believe Sara had psychiatric illnesses. He knew that the oral surgeon who operated on her jaw did not believe she could have done it herself and that he would be testifying. He knew that an expert on domestic violence found her to be credible and that he was on the witness list. He would have known that the burn mark in the shape of an iron was in a very awkward location that would have been difficult for Sara to cause herself. All of these examples lead me to conclude that there was bad faith on the part of Adeel, in regard to the issue of domestic violence which was part of the custody issues. He had in my view, an intention to inflict emotional and financial harm with his position on Sara’s injuries and the custody issue.
[75] I do not find that there was bad faith on the part of Adeel in terms of the other issues in the case, such as child support, spousal support, the Mehr, property issues or disclosure. By the time of the trial he proposed generous access for Sara so there was less bad faith on that issue.
[76] In S.(C.) v. S.(M.), Justice Perkins said at paragraph 24:
Bad Faith
(8) 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.
24 The wording of the rule (for which I must take some responsibility, I acknowledge) is brief and leaves some unanswered questions. If a party has acted in bad faith on one occasion, are the costs of the whole case to be awarded against the party on a full recovery basis? What if it was a small act of bad faith? What if it was only in relation to one issue, and on the other issues the party behaved properly? Are the costs to be a full recovery only in respect of the consequences of the bad faith? What impact do the factors and the discretion in rule 24(11) have on the full recovery mandated by rule 24(8)? My tentative conclusion is that full recovery costs should be awarded in relation to the issues affected by the bad faith and then the whole picture should be looked at again in light of the considerations in rule 24(11) and the discretion in that provision should be used as necessary to produce the correct overall result. I agree with this approach and I am of the view that bad faith was exhibited in terms of the evidence surrounding domestic violence and its relevance to custody. Also, as stated earlier, there are reasons to reduce the amount of costs requested and to not order costs on a full recovery basis.
[77] The law is clear that an amount of costs must be fair and reasonable under all the circumstances and not just a precise calculation of all time spent on the file.
[78] In all, I am of the view that an appropriate amount is $300,000.00. I realize that Adeel has no assets from which to pay this amount and that he has at the present time, insufficient income from which to pay it. Although we did not see proof of his other debts, it is reasonable to accept that after a lengthy criminal law trial, and after about three years of having a lawyer on the family law file, that he would have significant debts. This is especially so given that he lost his better paying job as a result of the charges, and his parents incurred significant legal expenses given that his mother was charged with similar assault charges and she hired a lawyer.
[79] Nevertheless, Sara should not have to incur expenses of well over $468,000.00 when the allegations against her that were a significant part of Adeel’s case, were found to be lacking in any credibility. Over four years passed between the time Sara left the matrimonial home weighing 100 pounds with a jaw broken in two places, and the time that the trial ended. It was a very expensive four years for Sara and, as the most successful party, she should be awarded some costs.
[80] The amount ordered is a reflection of Sara’s complete success on the custody and access issues, which dominated court time. It is a reflection of her success on the issue of spousal support and the Mehr which took much less time. It is also, in my view, a fair and reasonable amount given the lack of success on child support, the amount of costs already dealt with, the eventual settlement on property issues, and with some reduction for time incurred for a change in counsel.
[81] I have considered the criteria under Rule 24(12). The time spent by each party 24(12)(ii) is not a factor in my view. Adeel points out that he took much less trial time. He took equal time in cross examination as Sara’s counsel did in examination in chief. The fact that he chose not to call family members who lived in the same house during the relevant period is not something that should help him with costs. There were many exhibit books and the time needed was reasonable. The professional witnesses who were called by Sara were all helpful in my view. The expenses and fees were reasonable given the difficulty of the case 24(12)(iv and v). There were no Offers to Settle 24(12)(iii). I had no concerns about Sara’s behaviour but I did about Adeel’s given his continued attempt to portray Sara as having engaged in extreme self-harm due to psychiatric illnesses 24(12)(i).
[82] The remaining issue is whether or not I order the costs to be enforced by the F.R.O. I am mindful of Mr. Clarke’s argument that Adeel will not pay them and he may declare bankruptcy. I am also mindful of the fact that Adeel would be unable to exercise access in Rochester without a driver’s licence or passport, which he could lose if the F.R.O. cannot collect the money from him.
[83] The law provided to me is clear that I do not have to dissect the various issues at trial to see how much of the time was spent on support issues. There is law to support the position that all costs can be enforced even though custody and access issues took the majority of the time. In order to make a support order, the custody and access issues need to be determined first.
[84] Having considered the submissions and the law, I will exercise my discretion and order that only a small portion of the costs order will be enforced by the F.R.O.
[85] In this case the litigation and trial were completely driven by the custody and access issues. Very little time was spent on support issues. There was no dispute over what the parties’ incomes were. The only issues in dispute were:
a) Should Sara pay spousal support to Adeel?; and
b) Should child support, paid by Adeel, be based on his actual minimum wage income or on an imputed income of $126,000.00?
[86] Since the support issues took so little time in a rather unusual case and since there was some mixed success on those issues I am declining to have the entire order enforced by the F.R.O.
[87] I will however order a portion of the costs to be enforced by the F.R.O. given Sara’s success on the spousal support issue, and the fact that she had to go through this process in order to get child support.
[88] I did not find Adeel’s argument on spousal support to be reasonable. It is true that he earned substantially less income than Sara as of the trial. However, he argued that he should receive spousal support because he suffered an economic disadvantage during the marriage and Sara suffered an economic advantage.
[89] His reasoning was that Sara was earning over $200,000.00 per year in U.S. funds as a doctor and he was earning minimum wage as of the trial. I did not accept this reasoning because as of the date of separation, Sara had no income and was leaving the marriage with a jaw broken in two places, with no money, and with multiple scars and other injuries. Adeel on the other hand earned $79,906.00 in the year of separation and $111,391.00 the year after. Sara did not go on to earn her salary as a medical doctor because she had an economic advantage from the marriage. She went on to earn that money in spite of the marriage and the abuse that took place.
[90] With regard to the above considerations I will order that $25,000.00 of the costs be enforced as support.
[91] If I were to order the entire amount to be enforced as requested by Sara, Adeel would have a significant risk of losing his passport and driver’s license and he would then be unable to travel to Rochester for his access. Counsel for Sara said he would be the author of his own misfortune but it could lead to a Motion or Application to change the location of access due to a material change in circumstances. It was my view when I made my decision in January that access needed to take place in Rochester. This would make Sara feel safer and it would be best for the child who would otherwise be in a car for a total of five to six hours (2.25 to 3 each way) for a two to three hour visit. It also seemed appropriate given that Sara made that trip every weekend for nearly four years when the child lived in Canada.
[92] With $25,000.00 being enforced by the F.R.O. along with the monthly support payments of $204.00 Adeel is expected to manage this without going into default. He will still owe the balance of the costs ordered, and the payment of the Mehr as ordered on January 25th, 2019. Any outstanding costs from previous orders must also be paid.
[93] The fact that a small portion is being enforced does not mean that the balance does not have to be paid. If Adeel brings a motion or an application to change the existing order in the future, Sara will undoubtedly draw it to the court’s attention that there are unpaid costs. Interest will accrue. Only $25,000.00 however will be enforced by the FRO for reasons given.
[94] The sum of $25,000.00 is one twelfth of the total amount of the costs award and this reflects an approximate amount of time that support issues took.
[95] I will give Adeel time to prepare for the enforcement by ordering that $275,000.00 is to be paid forthwith and $25,000.00 is to be enforced by the F.R.O. as of September 1st, 2019.
Access Order
[96] I asked the parties when costs were argued on March 18th, 2019 if the supervised access had been set up yet and they said it had not. Clearly the correct jurisdiction for any future litigation on the custody and access issues is Rochester. However, if the parties have not set up the monthly supervised access because they cannot agree on the day or time or something similar they may ask the Trial Coordinator for a total of 30 minutes before me to finalize these issues.
[97] This would be a brief appearance in May or June of 2019 when I am sitting to enable the parties to carry out the access term of my order. Once access is set up however, any future litigation needs to be in Rochester. If such an appearance is requested, with notice to the other party, and with a time set up that is convenient for both, I would need something in writing from the proposed access supervision centre as to available dates and times, or whatever is in dispute.
Order to Issue
On a Final Basis
The Respondent shall pay costs to the Applicant for the litigation in this proceeding in the amount of $300,000.00 payable as follows: a) $275,000.00 payable forthwith. b) $25,000.00 payable on September 1st, 2019 to be enforced by the Family Responsibility Office as expenses relating to child and spousal support. The amount of $300,000.00 is in addition to any costs ordered previously in this matter.
If the parties have not set up the supervised access as ordered on January 25th, 2019 due to disagreements about days and times or something similar, they may ask the Trial Coordinator for 30 minutes before Justice McLaren in May or June 2019, in order to finalize this issue. They will need to bring documentation or a letter from the proposed supervised access centre setting out the available days and times for access, and any other information that would address any dispute between the parties.
McLaren J.