Court File and Parties

Kingston Court File No.: 318/09 Date: February 28, 2020 Superior Court of Justice - Ontario

Re: Khadija Hmoudou, Applicant And Bouchaib Semlali, Respondent

Before: Madam Justice Deborah Swartz

Counsel: Whitney E.A. Donnelly, Counsel for the Applicant Michael D. Swindley, Counsel for the Respondent

Heard: In Chambers (Written Submissions)

Costs Endorsement

[1] This motion to change was commenced by the Respondent father. He requested specified, in person access with the child, who is now 15 years of age. His motion to change was commenced on November 27, 2017.

[2] The mother responded to the motion to change with a request to adjust child support and proportional sharing of section 7 expenses. The mother opposed the father's motion to change.

[3] The OCL was appointed and after some delay, held a disclosure meeting in late 2019. The position of the OCL was for minimal contact between the child and the father. The recommendations of the OCL did not include specified, in person contact between the child and the father.

[4] On December 18, 2019 the parties filed a consent on a final basis, on all issues except costs. Costs of the proceeding, including costs for a settlement conference on June 25, 2019 which were reserved, are to now be determined based on written submissions from counsel.

[5] The final consent order mirrors the OCL recommendations and includes methods of electronic communication only. The OCL did not support the father's position. Access is to be in the discretion of the child and if she consents, counselling terms are also provided which might include the Respondent in the future.

[6] This court is now being asked to determine costs in circumstances where a consent has been filed, there has been no determination of success or to put it another way, no winner or loser determined, at a hearing, on evidence.

[7] The Respondent's position is that there should be no costs payable because this was a matter that settled. He urges upon me case law that he says supports this position.

[8] I reviewed the case law provided by both counsel and in particular the cases where caution is urged in situations of settlement between the parties. I do not read these cases as prohibiting a cost order in settled matters. Rather, the court must be cautious in making findings of reasonableness, laying blame or apportioning responsibility for increased costs and unreasonable litigation conduct when there have been no findings, no testing of credibility and no comprehensive understanding by the court, as may be acquired during a hearing, of the true nature of the case.

[9] In assessing the question of costs in this case, I have had the benefit of cost submissions from the Applicant, responding submissions from the Respondent and a reply from the Applicant. I have received case law from counsel. Each counsel have, in their written submissions, summarized their understanding of the litigation history and have argued their view of each parties reasonable or unreasonable litigation behaviour. I have reviewed the continuing record and the previous endorsements.

[10] There is a presumption that a successful party is entitled to costs. Rule 24(1) of the Family Law Rules sets this out. There are a number of factors set out within the rule that are to be considered and as are referenced below.

[11] Both counsel agree that the issues in this case were not complex but were very important to the parties. The Respondent takes no issue with the time spent, lawyers’ rates or expenses incurred by the Applicant and detailed within her bill of costs. He specifically notes that the fees are reasonable, proportionate and reflective of local billing expectations.

[12] The Applicant asserts that the Respondent's conduct during the litigation and in particular his delays relating to financial disclosure along with his relocation outside of Canada were unreasonable and created difficulty and delay. She asserts that her compromised position in the final order relating to support flows directly from the Respondent's unreasonable conduct in quitting his job and moving out of the country. She asserts that she was essentially forced to abandon her legal position in order to avoid increased cost and delay in a situation where the Respondent had made himself judgement proof.

[13] It bears repeating that this was a motion to change commenced by the Respondent father. He wanted specified direct contact with the child. At the moment the motion to change was commenced there had been an absence of contact with the child for a lengthy period. During the course of the litigation the Respondent was given opportunities to contact the child electronically and did not do so for many months. This was confirmed by the OCL. Yet he is the one that started the court proceeding and requested more time with his child.

[14] The father then chose, during the litigation to move to Morocco. Despite this move and the obvious difficulties this would create for access between he and the child, he did not withdraw his motion, amend his pleading or otherwise take steps to acknowledge the practical impossibility of the order he was requesting for access. By this I mean, he could not exercise every other weekend access between Morocco and Canada.

[15] At this point in the litigation the Applicant mother, who has been brought back to court by the father, is also faced with the additional possibility of having to shoulder almost all of the responsibility for the child's future financial and day-to-day care. The Respondent had quit his job as an engineer earning close to $200,000 a year and moved to a country without reciprocal enforcement of child support. It appears by the endorsement record that the monthly child support ordered in June 2010 in the amount of $575 per month may be the only outstanding child support order. The pleadings indicate that the parties themselves may have been adjusting child support annually and that the Respondent may have been actually paying in excess of $1,100 per month when the litigation was commenced. It is unclear whether he continues to consistently pay child support since his move to Morocco.

[16] The Respondent asserts that this was a situation of divided success. He asserts that as minutes a settlement were filed, the court ought to view the situation as one of divided success or as a compromise and that there was really no "winner or loser". The Respondent relies heavily on the Davis v. Davis case, 2004 CarswellOnt 2186 as well as Talbot v. Talbot, 2016 CarswellOnt 2658. I note that in the Davis v. Davis case the court notes at paragraph 42 (Justice Leach) "our courts have held that where parties make a settlement as between themselves, the court… should be very slow to make an award of costs against one of the parties ... and unless there are compelling reasons to do so, costs in the circumstances of a settlement between parties ought not to be awarded by the court".

[17] I have reviewed Justice Kurz's decision in the Frape v. Mastrokalos, 2017 CarswellOnt 21309 case, wherein he summarizes previous authorities advancing the theme that there ought to be a compelling reason to make an award of costs in a situation where a matter settles.

[18] I have reviewed Justice Hurley's decision in Glasius v. Brown, 2017 ONSC 4836 and have no difficulty accepting as reasonable his analysis therein, in circumstances where it is not apparent, as it is in the case before me, that one party was clearly successful. In my view, it is more than a stretch to interpret Justice Hurley's refusal to order costs where there is no clear "winner or loser", as a mandatory "finding" requirement by way of a hearing, for granting costs in a subsequently settled matter. It appears to me that Justice Hurley searched for a "winner", could not find one and therefore did not order costs. This is no different than the ordinary analysis required following a trial or hearing - who won and should they get costs? Or to put it another way, “who was the more successful party?”

[19] Justice Pazaratz asks in Scipione v. Scipione, 2015 ONSC 5982, "who got what they asked for". Isn't this the primary question in every costs decision?

[20] Rule 24 of the Family Law Rules sets out that this is the presumption. The successful party is entitled to costs.

[21] I agree with Justice Pazaratz that it is completely unreasonable to not get what you ask for and then argue that somehow success was divided or that you were in fact successful. There are situations where there is divided success, or where in examining a comprehensive settlement it may be impossible to unravel who got what and whether it was valuable to them or not. Caution must be exercised in situations where a settlement has been presented to a court and then the court asked to assess costs. Where there are allegations of unreasonable behaviour, bad faith or where the minutes of settlement are so intricate as to be enmeshed in a global structure, this initial caution may lead to a refusal to order costs in such circumstances. There will clearly be compromises made and settlements reached, where the motivation and considerations are unknown. It may then be impossible to determine who was successful, to assess reasonableness and reach a just and equitable order of costs. It may be impossible to adequately consider the factors under Rule 24(11) of the Family Law Rules.

[22] In my view in situations where a matter settles and it is clear that one side has been successful, it is entirely appropriate to assess costs and determine whether someone should pay costs to the other. If you can't look at the matter and clearly sort out who won or who was the more substantially successful party, how can you decide costs in any direction? If you can, you should assess costs in the usual manner. You can only work with what you have. It is therefore incumbent on counsel and the parties to be clear in their settlement terms as to what has transpired. If the consent is complex and intertwined, “global” in nature it may increase the likelihood that a court will not be in a position to assess costs. That is my view of the cases and is what I find reasonable in the circumstances of this case.

[23] I find in this case that the Applicant was the substantially successful party. The Respondent did not get what he asked for. His access to the child is very limited. He did not get in person, specified access to his daughter. While the Applicant did not achieve success in her request to increase future monthly child support, the existing order from 2010 remains. I do not find that the Respondent was "successful" in defeating the Applicant's claim to increase monthly child support, when the reason she did not pursue her request is the direct result of the Respondent's departure (mid-litigation) from lucrative employment and move to Morocco. The Respondent in any event did not make submissions in this regard.

[24] The Applicant was successful on the issue of retroactive and arrears of child support. This issue settled in the summer of 2019 by way of a consent to an order. By agreement there were no costs associated with this consent order. I have not considered the costs of that issue. It is helpful however in assessing reasonableness to note that the Respondent agreed to the Applicant's request relating to back support. It is also clear and unfortunate that the Applicant had to have the assistance of the court to get the Respondent to agree to attend to his obligations.

[25] The Applicant is asking for substantial indemnity costs in the amount of $8,509.65. She asserts that the unreasonable conduct of the Respondent rises to such a level as to justify substantial indemnity. She asserts that costs of the settlement conference in June 2019 are specifically called for given the Respondent's appearance without a brief.

[26] The Applicant made a formal offer to settle on December 6, 2019. This offer was accepted by the Respondent partially, on December 11, 2019. Acceptance of the cost portion of the proposal of the Applicant was not acceptable to the Respondent. I have considered the Applicant's offer to settle in the course of exercising my discretion in quantifying costs.

[27] I have considered both parties litigation conduct. I am not persuaded that the Respondent's conduct was unreasonable to a degree that would justify higher costs. Nor do I make a finding of bad faith.

[28] There is no doubt that costs are appropriate when someone arrives at a settlement conference without a brief. It is difficult however to assess the impact of that after the fact when the Applicant clearly sets out that there were extensive discussions that day. It is hard to assess what benefits may have arisen because of those discussions and what assistance may have been provided by the parties’ simple attendance at court. Likewise it is difficult to assess at this later date whether the attendance was a waste of time. It is of course a breach of the rules to fail to serve and file a brief. It is without a doubt more efficient and clear to be served with a brief ahead of time and to have that brief placed in the file so the judge can read the material in advance. Costs in favour of the Applicant for the settlement conference are included in my general assessment of costs in this matter.

[29] The Respondent made no formal offers to settle although as noted above, there were discussions which resulted in a consent to an order on the retroactive and arrears of support. A consent to an order is also noted in the record relating to a motion in the summer of 2018 which was resolved by way of the Respondent's withdrawal of that motion and a consent cost order made in the Applicant's favour.

[30] I also note the lengthy delay between the appointment of the OCL and the disclosure meeting. I note further that in the month immediately following the disclosure meeting the parties were able to settle the substantive access issue.

[31] I am not prepared to order substantial indemnity costs in the circumstances of this case. I am prepared to order costs on a partial indemnity basis.

[32] Costs are discretionary pursuant to section 131 of the Courts of Justice Act. Costs are to be reasonable and proportionate to the issues in the case.

[33] In the case of Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal speaks to and emphasizes "reasonableness and proportionality" in reference to Rule 24(12) of the Family Law Rules and sets out four fundamental purposes of modern costs rules. They are: a) to partially indemnify successful litigants; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants; and d) pursuant to Rule 2(2) of the Family Law Rules, to ensure that cases are dealt with justly.

[34] Having considered the fundamental purposes of costs noted above, I make this order for costs in order to partially indemnify the Applicant and to a lesser degree to discourage and sanction not only inappropriate behaviour by litigants but to discourage the continuation of litigation in situations where the remedy requested has been rendered meaningless by changes in the requesting party's circumstances.

[35] I have also considered the purpose of encouraging settlements and the intersection between that purpose and the risk that failing to carefully assess the question of costs in settled matters might dissuade settlements themselves. Caution in awarding costs in settled matters must be balanced against the risk of dissuading negotiated resolutions generally. In my view there must be no room for doubt that it may be entirely reasonable to order costs following a negotiated resolution in cases where success can be ascertained.

[36] On balance and taking into account all of the above factors and in the exercise of my discretion, I find that it is fair and reasonable for the Respondent to pay costs to the Applicant in the amount of $6,382.24 inclusive.

Madam Justice Deborah Swartz Date: February 28, 2020