Abdur-Rashid v. Abdur-Rashid, 2021 ONSC 1118

Court File No. FC-18-57572

Superior Court of Justice Endorsement

Applicant(s): Ayesha Abdur-Rashid

Counsel: Poroshad Mahdi

Respondent(s): Kamaluddin Abdur-Rashid

Counsel: Maria Elka Zagazeta Garcia

Heard: In Chambers

1I conducted a motion in this matter on September 16, 2020. I released my Endorsement on September 17, 2020. I also indicated that if the parties were unable to agree on costs, I would accept written submissions.

2I have received the parties’ written submissions on costs and below is my ruling.

3The Applicant seeks her costs in the amount of $10,000 for the motion. She notes that her costs of the motion, on a full indemnity basis, were $12,458.86 and $1,000 for the case conference held before Jarvis J. on January 10, 2020.

4The Respondent is seeking an order that no costs be payable by one party to the other or, in the alternative, he is requesting that the Applicant pay $10,000 in costs to him.

The Nature of the Proceeding

5This motion dealt with a) the Applicant’s request to strike pleadings, b) temporary and retroactive spousal support and c) indexing spousal support payments.

6In my order released on September 17, 2020 the Applicant’s motion to strike pleadings was denied, the Applicant’s request for the indexing of the spousal support payments was denied and the Respondent was ordered to pay spousal support in the amount of $2,600 per month retroactive to May 1, 2020.

Offers to Settle

7Both parties made offers to settle.

8A review of the offers to settle in comparison to the decision leaves me with little doubt that neither party was more successful than the offers made. Further, in reviewing the issues, there was divided success. The Applicant, however, was the more successful party with respect to spousal support.

9The issue of spousal support was the most dominant issue of the motion taking up the lions share of the materials and the submissions.

Analysis

10I begin my analysis of the issue of costs as framed by the parties, with the observation that the courts and the rules of court as it relates to the issue of costs are designed to foster four very fundamental purposes; specifically, (1) to partially indemnify the successful litigant; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules, O. Reg. 114/99, as amended, (“the Rules”) (see Mattina v. Mattina, 2018 ONCA 867).

11As stated, I have determined that success was divided. However, the Applicant was the most successful based on the positions taken by the parties as it relates to their offers to settle, their positions at the motion, and the outcome that was achieved.

12As the successful party, subrule 24(1) of the Rules creates a presumption of costs in favour of the Applicant.

13Subrule 24(5) of the Rules provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(12)(a) (1) above). It reads as follows:

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.

14I have determined the Respondent’s litigation strategy to be unreasonable. As stated in my September 17, 2020 decision, at paragraphs 10-14,

It appears the Respondent is following a pattern of being obstinate. He has not provided complete disclosure, he has not complied with the order to obtain the civil divorce forthwith and he has not been cooperative in the Applicant’s efforts to obtain a Talaq.

The Respondent has been cavalier in his approach to this litigation. Despite entitlement, three years post separation he has made no voluntary payments to the Applicant for her support.

The Respondent has not obtained the divorce, he states, because he was waiting for the marriage certificate and then the courts closed. The courts did not close until more than two months after the consent order including the provision that he obtain the divorce forthwith. The court has been processing divorce applications for several weeks.

The Applicant states that the Respondent is not cooperating with the Respondent’s request for a Talaq. In his submissions, the Respondent makes reference to a Muslim cleric, unnamed, that allegedly told him he was unable to provide the Talaq. No sworn affidavit was offered and the name of the cleric withheld.

Orders are not recommendations and non-compliance with court orders have consequences.

15An award of costs is subject to a number of factors, specifically those set forth in Rule 24(12). It reads as follows:

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.

16In arriving at an award of costs, I am mindful that this court must exercise a discretion based on principles of reasonableness and proportionality (see Beaver v. Hill, 2018 ONCA 840).

17I have considered that the Applicant was the most successful despite the divided success.

18I have considered the unreasonableness of the Respondent’s litigation behaviour.

19I have considered the offers to settle provided by the parties.

20I have decided that legal fees and disbursements, in the amount of $9,000 are fair, reasonable and proportionate to award the Applicant considering the divided success, volume of materials, the length of the motion, the lack of complexity involved, the offers to settle, and the unreasonable litigation behaviour of the Respondent.

21The case conference before Jarvis J. on January 10, 2020 did not reserve costs to the motion’s judge. It is silent on the issue of costs. Accordingly, I have not made an order for costs of the case conference proceeding before Jarvis J.

Order

22Based on the foregoing, an order shall issue as follows:

1. The Respondent shall, within 30 days, pay to the Applicant costs for the motion heard September 16, 2020 in the amount of $9,000 inclusive of H.S.T.