Court File and Parties

Court File No.: FC-20-246 Date: 2020-06-01 Corrected Date: 2020-06-02 Superior Court of Justice - Ontario

Re: Haja Fazuludeen, Applicant And: Farzana Abdulrazack, Respondent

Before: McDermot J.

Counsel: Natalie Javed, for the Applicant Alawi Mohideen, for the Respondent

Heard: By written submissions

Corrected Decision: The text of the original Endorsement was corrected on June 2, 2020 and the description of the correction is appended.

Endorsement

[1] On April 2, 2020, I heard a motion arising from an ex parte temporary order made by Jain J. on February 28, 2020. At the request of the Applicant without notice, Jain J. placed the two children into his care and granted a restraining order against the Respondent. I set that order aside and returned the children to the care of the Respondent Mother based upon the fact that the Applicant had made material misrepresentations to Jain J. when she initially heard the matter, and based upon the fact that, for the 17 months prior to the children being taken out of the care of the mother on December 26, 2019, the Respondent had been the primary caregiver of the children.

[2] There is no issue that the Respondent Mother was entirely successful on the motion. I have already determined in my endorsement that she is entitled to her costs: see Rule 24(1) of the Family Law Rules which provides that costs follow the event. These submissions concerned the amount of costs payable by the Applicant.

[3] Both parties are legally aided, but that should have no effect on the quantum of the costs: see s. 46(1) of the Legal Aid Services Act, 1998, Holt v. Anderson, 2005 ONSC 44179 and Trudel v. Trudel, 2010 ONSC 5177.

[4] The issues raised in the parties’ costs submissions are as follows: a. Is the Applicant Father guilty of unreasonable or bad faith behaviour? b. Is the Respondent Mother entitled to full recovery costs based upon her offer to settle? c. Should the Respondent Mother be deprived of costs or should her costs be reduced because of the Applicant Father’s financial hardship?

Unreasonable or Bad Faith Behaviour

[5] Under Rule 24(12)(a)(i), a party’s unreasonable behaviour can be considered in setting the amount of costs. As well, if I find a party to be guilty of bad faith conduct, Rule 24(8) provides that “the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”

[6] Certainly, there was unreasonable behaviour on the part of Mr. Fazuludeen. He exaggerated if not actually misrepresented abuse on the part of Ms. Abdulrazack. As I pointed out in my endorsement, he said that Ms. Abdulrazack had sexually abused the children, but the only example that he could find was her overreaction to the Applicant watching pornography in front of the children. To allege abuse to gain an advantage in the litigation has been held to be unreasonable behaviour: see Paranavitana v. Nanayakkara, 2010 ONSC 2257 at para. 42.

[7] The Applicant was also acted unreasonably in his material non-disclosure to Justice Jain, who heard the original motion. He failed to disclose to Justice Jain that the children’s long-term home was in Scarborough other than during the lengthy stays in India and that they had never before lived in Barrie. He claimed to be the primary caregiver of the children when the independent evidence from both the school and the doctor indicated that the Respondent was the primary caregiver and was the contact person both for school and for medical appointments. He failed to provide an offer to settle which is, in itself, unreasonable behaviour: see Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774 and H.F. v. M.H., 2014 ONCJ 526. His failure to attempt to arrange access for the children for the mother also qualifies as unreasonable behavior; after 17 months with their mother in India, the children were cut off from any contact with her, leaving Ms. Abdulrazack attempting to find the children through the schools in Barrie.

[8] The Respondent says, however, that the Applicant not only acted unreasonably; he is also guilty of bad faith behaviour which, if found, results in an award of full recovery costs payable immediately under Rule 24(8).

[9] Bad faith behaviour is different from unreasonable behaviour. To find bad faith behaviour, the court must find as stated by Pazaratz J. in Scipione v. Del Sordo, 2015 ONSC 5982 at para. 96: Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation.

[10] Later in his decision, Pazaratz J. notes that bad faith requires that the court find that the wrongdoer acted with “malice or intent to harm.” He points out that a finding of bad behaviour is rarely made out because of the high threshold of proof: see S.(C.) v. S.(C.), 2007 ONSC 20279; Piskor v. Piskor, 2004 ONSC 5023; Cozzi v. Smith, 2015 ONSC 3626.

[11] Misrepresentation and deceit has been found to be bad faith behaviour: see C.A.B. v. A.E.H., 2018 ONCJ 178 where the mother lied about the child not having seen his father for a year when they had actually reconciled during that time. Sherr J. found bad faith behaviour where: Her behaviour was done knowingly and intentionally, with the intention of creating a false narrative in order to frustrate the father's relationship with the child and obtain an advantage in the litigation - which she was able to do in the short-term.

[12] That statement is on all fours with the father’s behaviour in the present case. It was clear to me at the motion that Mr. Fazuludeen had misrepresented the situation to Jain J. when she heard the motion without notice. He falsely misrepresented the mother as having sexually abused the children. He said that the mother was “financially abusive”, and did not contribute towards the expenses of the household from the child tax credit; in fact this was patently untrue based upon the bank statements provided by the Respondent. He moved the children to Barrie without telling the court where they had lived for most of their lives and then tried to cut the children off from their mother. The material misrepresentations made by the Applicant at the hearing of the ex parte motion deceived the court resulting in a custody order and a restraining order. The behaviour also resulted in the order being set aside by me at the motion.

[13] I therefore find that the Applicant is guilty of bad faith conduct within the meaning of Rule 24(8) of the Family Law Rules.

[14] I need to comment on the affidavit filed by the Applicant as part of his costs submissions. It is a reply affidavit to the Respondent’s materials filed at the motion, but was sworn and served well after the hearing of the motion. Ms. Javid says that the affidavit was filed, not to “relitigate” the issues at the motion, but to show that Mr. Fazuludeen’s behaviour was reasonable.

[15] I noted in my reasons that Ms. Javid attempted on several occasions to give evidence from the counsel table, referencing the text messages that were eventually attached as exhibits to the affidavit filed with the costs submissions. I prevented her from doing so because there was no evidence as to those texts before the court at the motion as the Applicant failed to provide a reply affidavit. There was no request for an adjournment of the motion so that Mr. Fazuludeen could complete the translations of the text messages and present them to the court. To later present them as evidence when arguing costs is clearly improper and, whatever the stated intent in the costs submissions, the affidavit is really saying to the court that the decision was wrong and costs should therefore not be awarded. That is not a valid ground for the assessment of costs; at this point, the decision has been made subject to the right to appellate review. The time to file the affidavit was at the motion, and to do it after the decision has been made is neither productive nor persuasive.

[16] I therefore have not considered the contents of that affidavit in determining unreasonable behaviour or the costs of the motion.

Offer to Settle

[17] Mr. Mohideen served and filed an offer to settle on behalf of the respondent mother.

[18] The offer provided for a two-week period of time when the children were living with the mother, after which custody would be temporarily shared on a week about basis. The motion would be returnable for review two weeks prior to school starting. Effectively, the offer is an interim interim offer to settle, intended to last the summer.

[19] My order is much less favourable to the Applicant than was the offer. I ordered that the Respondent have primary residence with weekend access. My only mention of shared care was a suggestion that the order may be reviewed if the Applicant moved to the Scarborough area, in which case custody of the children could possibly be shared.

[20] The Applicant did not file or serve an offer to settle.

[21] The Respondent’s offer to settle does not comply with Rule 18(14). It is not signed by the Respondent (understandable due to Covid-19). Moreover, it expired on April 1, 2020 at 5:00 p.m., prior to the motion being argued contrary to Rule 18(14)3. Finally, the offer contained costs consequences if not accepted prior to March 31, 2020 at 12:00 p.m. which begs the question of costs as they have not yet been determined. The offer was not severable and unless the result at the motion is more favourable to the offeror as to all of its terms (or those which are severable), it cannot attract the costs consequences of Rule 18(14): see Paranavitana v. Nanayakkara, 2010 ONSC 2257, Rebiere v. Rebiere, 2015 ONSC 2129 and Scipione v. Del Sordo, 2015 ONSC 5982.

[22] However, the offer is clearly an attempt to compromise. It is an attempt to propose shared custody of the children which would maximize contact between both parents and the children. The Applicant says that it was not an attempt to compromise and that he could not accept the offer because of his fears about abuse at the hands of the Respondent; as I concluded at the motion, the Applicant’s fears about the Respondent were not, in my view, well founded or based in fact.

[23] Compromise should be the goal of any offer to settle: see Beaver v. Hill, 2018 ONCA 840. The fact that this offer is a genuine attempt to arrive at a compromise in the best interests of the children is important to the issue of costs. I therefore take the offer into account under Rule 18(16) notwithstanding its failure to comply with Rule 18(14).

Inability to Pay

[24] The Applicant says that he is not presently working and cannot pay any award of costs at present. He says that to order costs against him would work a hardship.

[25] Impecuniosity has been held to be “any other relevant matter” within the meaning of Rule 24(12)(b) in setting the amount of costs. In M.(C.A.) v. M.(D.), 2003 ONCA 18880 Rosenburg J.A. said exactly this at para. 42: In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant v. Sagoo, 2001 ONSC 28137 at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (Ont. S.C.J.) at para. 11. In fixing costs the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.

[26] As well, Rosenburg J.A. said that inability to pay would be a factor for a judge to exercise his or her discretion to refuse to award full recovery costs under Rule 18(14).

[27] However, it is to be noted that the major factor that Rosenberg J.A. cited was the fact that it would be oppressive to make a major costs award against a custodial parent, which would affect the interests of the child. It would create hardship issues within that child’s household, and this would therefore negatively affect the child. That is obviously not the case in here as the children have been placed in the care of the mother. The Respondent is not receiving support from the Applicant (neither would she if he is unemployed) but the hardship of a costs award would not affect the children’s interests in the present case.

[28] Moreover, there is authority for the proposition that financial hardship is not something to be taken into account where there is, as in the present case, a finding of bad faith conduct: see Achakzad v. Zemaryalai, 2011 ONCJ 721. This is especially so where both parties are in similarly modest financial circumstances as is the case with these parties.

[29] I therefore do not take the Applicant’s financial circumstances into account in setting the costs amount in the present case.

Disposition

[30] I have made a finding that the Applicant is guilty of bad faith behaviour. In addition, the Respondent made a bona fide attempt to resolve the matter through her offer to settle and there was no evidence that the Applicant made any similar attempts to resolve the matter. Both parties are of similar modest means and those circumstances, as well as the fact that the parties are legally aided, make no difference to the quantum of costs in this matter.

[31] Therefore, the Respondent is entitled to full recovery costs in this matter. This does not mean, however, that the Respondent has carte blanche to demand costs according to the Bill of Costs. The touchstone has to be whether the costs requested are reasonable.

[32] Under Rule 24(12)(a)(ii) and (iv), the court must review the lawyer’s rates and the “time spent by each party” on the case. The Respondent has filed a bill of costs requesting $8,301.48 in costs inclusive of HST and disbursements.

[33] Regarding the lawyer’s hourly rates, the Applicant has submitted that the $400 per hour claimed by Mr. Mohideen is unreasonable because it “is not a reasonable hourly rate nor a modest rate for a legal aid client”. I have already spoken to the effect of s. 46(1) of the Legal Aid Services Act, 1998 which provides that the costs are to be assessed without regard to a party’s legally aided status or the legal aid rates charged to the Ontario Legal Aid Plan. The hourly rate must be assessed based upon the lawyer’s reasonable hourly rate considering his skills and experience.

[34] Mr. Mohideen was called to the bar in 1979. He has 41 years’ experience. The hourly rate of $400 is entirely reasonable under the circumstances.

[35] As well, the correspondence attached to the costs submissions indicate that the Applicant’s counsel would not adjourn the first appearance date; Ms. Javed told Mr. Mohideen to “have your client attend with instructions or an agent on your behalf.” The attendance of an agent at both the first appearance date and the return of the motion was therefore reasonable as this minimized Mr. Mohideen’s travel expenses. As well, the failure to agree to an adjournment of the first appearance date was the responsibility of the Applicant and it is for him to pay the costs of that.

[36] My review of the Bill of Costs indicates that the time charged by Mr. Mohideen was reasonable under the circumstances. I note that there were no charges for a Tamil translator on the motion even though an individual was present at the motion to translate for the Respondent.

[37] The Respondent shall have her costs of the motion in the amount of $8,300. Under Rule 24(8), those costs are payable forthwith.

McDermot J.

Corrected Date: June 2, 2020

June 2, 2020 – Corrections:

1. Para. 5 first sentence now reads: Under Rule 24(12)(a)(i), a party’s unreasonable behaviour can be considered in setting the amount of costs.
2. Para. 25 first sentence now reads: Impecuniosity has been held to be “any other relevant matter” within the meaning of Rule 24(12)(b) in setting the amount of costs.
3. Para. 32: first sentence now reads: Under Rule 24(12)(a)(ii) and (iv), the court must review the lawyer’s rates and the “time spent by each party” on the case.