COURT FILE NO.: FS-19-8688-0000

DATE: 20200210

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Munaza Chaudhry

AND:

Reza Meh

BEFORE: J.T. Akbarali J.

COUNSEL: Harold Niman and Mark DeGroot, for the Applicant W. Abbott for the Respondent

HEARD: In writing

ENDORSEMENT

[1] The parties to this litigation each brought motions which, together, required a long motion date. Because there were urgent issues, I heard the mother’s motion for exclusive possession of the matrimonial home and the parties’ motions for parenting orders first, on the regular list, on October 15, 2019. I released my reasons on October 22, 2019. I ordered that the mother have exclusive possession of the matrimonial home, and I ordered a shared parenting schedule: Chaudhry v. Meh, 2019 ONSC 6101.

[2] Subsequently, I heard the motion for support on November 21, 2019. I determined that the respondent’s income for support purposes was $330,000. I ordered set-off table child support to given the shared parenting arrangement I had previously ordered. I ordered that each party pay their respective share of the child’s s. 7 expenses. I ordered mid-range spousal support. In the result, I ordered spousal support of $3,196 monthly, net table child support from the respondent to the applicant in the amount of $1,533 monthly, and I ordered the respondent to pay 64.9% of the child’s s. 7 expenses, while the applicant’s share was 35.1%.

[3] I also addressed an issue the parties placed before me regarding the identity of the s. 30 assessor, on which they could not agree. I accepted the mother’s suggestion that Dr. Morris complete the s. 30 assessment because he was available to start right away.

[4] The parties were unable to agree on costs. They have now made written submissions on the costs of these motions. These reasons deal with costs.

[5] The applicant argues that she was successful on the issue of exclusive possession of the matrimonial home, and that she made an offer on the morning of the parenting motion that provided for shared parenting, albeit with a different schedule than the one I ordered. She states that she acted reasonably in offering to resolve the temporary financial issues with a lump sum payment. She argues that, in contrast, the respondent’s behaviour was unreasonable, necessitated the motion, and that I did not accept his assertion about his income. In these circumstances, she states she is entitled to partial indemnity costs in the amount of $35,000 all inclusive.

[6] The respondent argues that no costs should be awarded, or alternatively, that costs should be reserved to the trial judge. He states that the applicant’s offers were not severable, and that success was divided. He also argues that costs of the first attendance of this motion, in September 2019, was adjourned because it was brought by the applicant knowing counsel for the respondent was in trial outside of the city. He states that the attendance was a waste as he had not had time to prepare responding materials.

[7] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, 299 A.C.W.S. (3d) 770, at para. 10. Proportionality and reasonableness are the touchstone considerations of costs awards: Beaver v. Hill, 2018 ONCA 840, 17 R.F.L. (8th) 147, at para. 12.

[8] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[9] Pursuant to r. 24 of the Family Law Rules, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10.

[10] The factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of the factors enumerated there as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees, any other expenses, and any other relevant matter.

[11] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.

[12] In this case, I note the following:

a. The applicant was wholly successful in her motion for exclusive possession of the matrimonial home.

b. The parenting time order I made aligned better with the respondent’s proposal, but the difference between the parties’ positions was minor; the applicant sought six days out of fourteen where the child would be with the father, while the respondent sought a shared parenting schedule. My order was also consistent with the offer the applicant made at the outset of the motion. This was not an offer under r. 18(14) but is an offer the court can consider under r. 18(16).

c. My determination on support did not follow either party’s submissions. I rejected both parties’ argument about the respondent’s income. In the result, I ordered substantially more be paid to the applicant than the respondent offered[^1], but also substantially less than the applicant sought. On this issue, success, or lack thereof, is divided.

d. The applicant succeeded in obtaining an order that Dr. Morris conduct the s. 30 assessment.

[13] In the result, I find that the applicant was the more successful of the parties, in a result that reflects divided success. I also find that, in determining costs, the first appearance, which was adjourned to allow the respondent’s counsel to prepare materials and participate, was not necessary. The parties were capable to agreeing to a timetable and a return date without attending before the court. I appreciate that I ordered terms that governed the parties’ behaviour at that first attendance, but notwithstanding, it remains my view that the first attendance could have, and should have, been avoided had the applicant engaged with the respondent with respect to scheduling and timetabling issues.

[14] I note that there is no objection to the time spent, or hourly rates charged, in relation to the importance of the motions. The motions raised important issues, and both parties engaged senior family law counsel to advance their positions. The amount of costs claimed reflects these factors.

[15] I conclude that the applicant is entitled to some costs, but the amount of costs must reflect the divided success on the parenting and support issues on the motion, and the wasted first attendance.

[16] In the result, I find that costs of $12,000, all inclusive, are fair and reasonable. The respondent shall pay this amount to the applicant within thirty days.

J.T. Akbarali J.

Date: February 10, 2020

[^1]: The respondent argues that he beat his offer as it relates to support, because of his responsibility for s. 7 expenses, but he assesses the value of his offer by including the amount he pays in s. 7 expenses as if it were support being paid to the applicant. He then compares that payment to the amount I ordered without considering the amount I ordered he pay in s. 7 expenses. As I review the offer and what I ordered, it is apparent to me that the respondent did not come close to beating his offer.