Court File and Parties

Court File No.: FC-20-597 Date: 2020/06/04 Superior Court of Justice – Ontario

Re: Sahar Zeitoun, Applicant And: Hassan Abdallah, Respondent

Before: J. Mackinnon J.

Counsel: Karla Policelli, for the Applicant Wade Smith, for the Respondent

Heard: In Writing

Costs Endorsement

[1] The applicant seeks full indemnity costs of $8,841.12 for a case conference and a motion both of which addressed parenting issues. The respondent submits each party should bear their own costs, or, if costs are awarded, that they be in a lesser amount than claimed.

[2] The claim for full indemnity costs is based on allegations of unreasonable conduct by the respondent and having bested her own Offer.

[3] The Ontario Court of Appeal has weighed in on this issue in two recent cases. In Beaver v. Hill, [2018] ONCA 840 that Court held at para 11:

“There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads:

(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

[4] Neither a finding of unreasonable litigation conduct or having bested one’s Offer mandates an award of full costs. In both Beaver v. Hill and Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal stresses the importance of reasonableness and proportionality as the "touchstone considerations" to be applied in fixing the amount of costs.

[5] I agree the respondent did engage in unreasonable conduct which is more fully described in my endorsement found at 2020 ONSC 2770. I was also critical of the mother’s decision to leave with the children for a few days, even though I found she had told the father what she was doing, when she must have known she did not have his agreement to take the children. However, I found this was outweighed by the subsequent self-help conduct the father took in overholding and withholding the children during the month of April. I made other adverse findings against the father which need not be repeated here.

[6] I do not agree that the applicant matched or bested her Offer. The parenting arrangement she proposed was for a short time period only. It would have ended on June 30. It also called for payment of $3,000 in costs as a condition of acceptance. The Offer was served on the afternoon of April 28 which is not “at least one day before the motion date” of April 29. See FLR r. 18(14) and r. 3(1).

[7] The respondent did not make an Offer to Settle the motion.

[8] The respondent takes issue with whether there should be costs awarded for the case conference and with the total number of hours spent by opposing counsel. The case conference was required to be heard before the motion could proceed and dealt primarily if not exclusively with issues pertaining to the motion. In these circumstances, I find the applicant is entitled to costs of the conference. Her Bill of Costs does not break down the time spent as between the conference and the motion. Twenty-six hours are claimed for both events. I agree this is more time than the opposing party would reasonably contemplate. That said, the total time spent by respondent’s counsel is very efficient, and I do not view the expenditure of some more time as unreasonable.

[9] In conclusion, I find the applicant is entitled to costs of both the case conference and the motion but not on a full indemnity basis. In fixing the amount I have considered that the applicant was the successful party and that the respondent engaged in significant unreasonable conduct.

[10] For these reasons costs of both events are fixed in the amount $4,625 inclusive. Lacking an evidentiary foundation to support a claim of temporary inability to pay, the costs are payable within 30 days.

J. Mackinnon J. Released: June 4, 2020