Ahmed v. Shaikh, 2021 ONSC 7541

COURT FILE NO.: FS-19-95754

DATE: 20211115

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Shoeb Ahmed v. Farah Shaikh

BEFORE: McGee J.

COUNSEL: Melanie Battaglia for the Applicant

Malerie Rose for the Respondent

MOTION HEARD: September 16, 2021 via videoconference

COSTS ENDORSEMENT

1In reasons released October 6, 2021, I ordered that a Section 30 Assessment of the parenting issue be conducted pursuant to Rule 1(8) of the Family Law Rules. Mr. Ahmed was the successful party, and he seeks a full recovery of his costs in the amount of $13,704.08, or in the alternative a partial recovery of $8,907.65. Ms. Shaikh asks that no costs be paid, or in the alternative, that the amount of $5,000 be ordered.

2For the reasons set out below, I award Mr. Ahmed costs of $9,750 plus HST of $ 1,267.50 for a total of $11,017.50 payable forthwith.

Offers to Settle

3The starting point to assess costs is a comparison of the parties’ Offers to Settle.

4The day before the motion, Mr. Ahmed made a Rule 18 Offer to Settle that I find contained terms as favorable to him as were the terms later ordered on the motion. I do not accept Ms. Shaikh’s submission that having the court choose an assessor if one could not be determined was more favorable to her than the ability to pick from a list of three well-known and capable assessors. The substance of the Offer mirrored the Order: the parents would proceed with an assessor, with the costs to be paid from sale proceeds being held in trust.

5Ms. Shaikh did not accept Mr. Ahmed’s Offer and relevant to these reasons, she made no Offer to Settle. Instead, her counsel attempted to adjourn the hearing to a long motion, or to argue that a Motion to Change was required to address her own breach. Both arguments were rejected.

Order not Sought on Motion Cannot be Considered in its Costs Decision

6This Motion only concerned parenting issues, specifically whether a Section 30 Assessment should be ordered. Child Support was not sought in Ms. Shaikh’s Notice of Motion and yet she proposes in her costs submissions that Mr. Ahmed should be denied any costs recovery because he has failed to pay child support. I cannot make such a finding, nor can I consider the payment of child support in these circumstances. Within this decision, it is neither a “relevant matter” per Rule 24(12)(b) of the Family Law Rules nor is it unreasonable litigation conduct per Rule 24(5). Costs submissions are not the forum in which to determine a fresh issue that was not before the Court, or to propose that if it had been before the Court, that there would have been divided success.

Importance and Complexity of the Issues

7At the time of the hearing of the motion, the parties’ daughter had not seen her father for almost a year and their son had not seen him for almost 7 months. In play was a growing distance between father and children that the mother had no plan to correct. Section 16(6) of the Divorce Act establishes as a priority that children have as much time with each parent as is consistent with their best interests.

8Mr. Ahmed’s proposal for a section 30 assessment was premised on a novel and emerging view of Rule 1(8) of the Family Law Rules. As set out in my decision, it was practical, and child centered. The materials filed by Mr. Ahmed in support of his motion were substantial and were well summarized in a factum with relevant authorities. I accept his submission that legal research in this instance was required to advance and secure the Order sought.

Reasonable Fees and Disbursements of Moving Counsel

9Ms. Shaikh submits that the fees incurred by Mr. Ahmed are excessive, or unreasonable. However, Ms. Shaikh does not provide any documentation showing her fees and expenses as is required by Rule 24(12.2). As is often stated, an objection to the amount of fees incurred by the opposing party in the absence of disclosing one’s own fees incurred is ‘an attack in the air.”

10I have reviewed Mr. Ahmed’s Bill of Costs and considered the factors as set out in Rule 24(12)(a) which read:

SETTING COSTS AMOUNTS

(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. O. Reg. 298/18, s. 14.

11Mr. Ahmed’s account identifies a reasonable hourly rate for counsel and her clerk and appropriate times incurred to complete various tasks. However, Rule 18(14) only provides for a full recovery of costs incurred after service of a successful Order; so it is only the attendance fees that can be fully recovered as the preparation costs were incurred prior to the Offer to Settle.

Amount of Costs Ordered

12Court proceedings are expensive, time-consuming, and stressful for all concerned. Costs awards are intended to change litigation behaviour by injecting a cost-benefit analysis. As stated by the Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, costs are designed to foster four fundamental purposes:

a. to partially indemnify a successful litigant;

b. to encourage settlement;

c. to discourage and sanction inappropriate behaviour by litigants and;

d. to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules.

13This is a matter that could have been easily resolved; and it needed to be resolved. It was clear that the parents’ agreed parenting schedule was not working. Both parents should have been equally curious and motivated to find out why, and what could be done to repair it. The father’s proposal was reasonable. The mother’s actions were not. This was an unnecessary motion.

14Rule 24(1) of the Family Law Rules provides that a successful party is presumptively entitled to costs. I am satisfied that the costs sought are reasonable and proportionate, and in a range that an unsuccessful party should have expected to pay should she be unsuccessful.

15In making my award of costs, I take into account that Mr. Ahmed’s Bill of Costs does not include the additional time necessary for him to prepare a reply to the argument that a claim not before me on the motion is an offset to his success.

16In reviewing the fees charged, the allocation of those fees between counsel and clerks, disbursements and a full recovery only after service of Mr. Ahmed’s September 15, 2021 Offer to Settle, I award him fees and disbursement of $9,750 plus HST of $1,267.50 for a total of $11,017.50 to be paid forthwith. If the parties agree, the costs may be paid from Ms. Sheikh’s share of the sale proceeds being held in trust.

McGEE J