Court File and Parties
COURT FILE NO.: FS-20-19809 DATE: 20201221 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Taya McGhee, Applicant AND: Ziyad Qureshi, Respondent
BEFORE: Kiteley J.
COUNSEL: Margaret Teixeira, counsel for the Applicant Respondent, self-represented
HEARD: in writing
COSTS ENDORSEMENT – MOTION HEARD NOVEMBER 6, 2020
1Before issuing an Application, the Applicant brought an urgent motion for an order requiring the Respondent to return the children to her. In an endorsement dated November 9, 2020 I granted the motion and set a timetable for written submissions as to costs.
2The Applicant served and filed written submissions in which she asked for full indemnity costs but she provided a bill of costs that included full indemnity costs at $5,545.46 and substantial indemnity costs at $4169.10. The Applicant also provided a copy of the offer to settle costs she had made.
3The Respondent did not serve and file responding submissions on costs.
4In paragraph 10 of the endorsement dated November 9, 2020 I listed the four reasons for finding that it was in the best interests of the children that they be returned to the care of their mother. Furthermore, in paragraph 11, I held that there were reasonable and probable grounds that the Respondent was unlawfully withholding the children and therefor I made an order pursuant to s. 36(2) of the Children’s Law Reform Act for police assistance. In paragraph 20, I held that the Applicant was entitled to costs.
Analysis
5The Applicant was successful and, pursuant to Family Law Rule 24(1), she is entitled to costs. The only issue is whether it should be full indemnity or substantial indemnity. In my view, the Applicant is entitled to full indemnity for these reasons.
6First, as indicated in paragraph 10 of the November 9 endorsement, there was no basis for the Respondent to interrupt a status quo that had existed since at least March 2018. His conduct was unreasonable.
7Counsel takes the position that the Respondent was also acting in bad faith and she relies on S. (C.) v. S. (M.) 2007 CanLII 20279 (ON SC). There was no justification for the Respondent to withhold the children. Instead of returning the children, the Respondent contacted the police and the Children’s Aid Society. The only inference to be drawn from that conduct is that he attempted to get the upper hand to secure his position. Although the children had barely returned to school after COVID19 closed schools in the spring, he kept them out of school for approximately 6 weeks before the urgent motion was brought and decided. The only inference to be drawn from that conduct is that he was oblivious to the best interests of the children and he was intentionally trying to harm the Applicant emotionally. His description, which I summarized in paragraph 6 of the endorsement, of filing in the Ontario Court of Justice and in the Superior Court in Durham made no sense, particularly since he took no steps to serve the documents on the Applicant. He did not respond to attempts by the Applicant initially and then by her lawyer to resolve the situation without court intervention. He made no attempt to file responding material for the urgent motion except to submit the unhelpful documents he said he had filed in the OCJ and in the SCJ in Durham. The only inference to be drawn from the conduct of the Respondent is that he intended to inflict financial and emotional harm on the Applicant and he succeeded.
8Second, the Applicant made an offer to settle costs of the motion. The endorsement was released November 9. In paragraph 20 I indicated that if the parties were unable to agree as to the amount of costs by November 19, 2020, then the parties would make written submissions. In a letter dated November 10, 2020, counsel informed Mr. Qureshi that the Applicant would settle for $2500 but warned him that, if required to prepare submissions, the Applicant would ask for a greater amount. He did not respond even though the offer was reasonable given the actual costs incurred and even though he was warned that he could be ordered to pay an increased amount if the issue of costs was not settled.
9Pursuant to rule 24(8), I find that the Respondent has acted in bad faith and accordingly, the Applicant is entitled to full indemnity costs.
ORDER TO GO AS FOLLOWS:
10The Respondent shall pay to the Applicant full indemnity costs in the amount of $5,545.46 no later than January 29, 2020.
11This endorsement is effective as an order of the court enforceable by law from the moment it is released.
12The Applicant may forward an unapproved draft order incorporating paragraphs 10 – 11 to my attention for signing.
Kiteley J.
Date: December 21, 2020