Court File and Parties

COURT FILE NO.: FC1674/12-3

DATE: December 21, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Ahmad Mohamed Zorab, applicant

AND:

Arwa Nehad Saleh Zourob, respondent

BEFORE: TOBIN J.

COUNSEL: Kelli McPhail for the applicant

Genevieve M. Samuels and Courtney Davis for the respondent

HEARD: written submissions filed

ENDORSEMENT on costs

[1] Following a four day trial, the court released its Reasons for Judgment Part I on October 18, 2021 and Part II on November 9, 2021. The mother was allowed to move with the parties’ child to Winnipeg. She and the father were granted shared decision-making responsibility subject to the mother having the responsibility to make a final decision following meaningful consultation with the father. Parenting time and child support was also ordered, the latter on consent.

[2] The parties were invited to make costs submissions and did so.

[3] The mother seeks costs of $33,500 on the basis that she was more successful than the father and acted reasonably throughout this proceeding.

[4] The father asks that costs to the mother be fixed in the amount of $1,000. His submission is based upon the divided success achieved, the reasonableness of his behaviour, including providing offers to settle, and the difficulty in settling relocation cases: see Van Rassel v. Van Rassel, 2008 CarswellOnt 6600, at para. 9; and De Groot v. Iouguina, 2019 ONSC 3878, at para. 11. He also asks that his financial circumstances be taken into account when determining costs.

Legal Considerations

[5] Modern family law cost rules are based on broad objectives. These objectives are: to partially indemnify successful litigants, to encourage settlement, to discourage improper behaviour by litigants and to ensure cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[6] Costs awards are discretionary. In the exercise of discretion, the court must consider two important principles: proportionality and “the ‘reasonableness’ evaluation of the ultimate award”: Beaver v. Hill, 2018 ONCA 840, at para. 4.

[7] Under the Family Law Rules, O. Reg. 114/99, a party’s entitlement to costs rests primarily on success (r. 24(1)) and behaving reasonably (r. 24(4) and (5)).

[8] In measuring success, the court can look at the positions of both parties and the relief ordered.

[9] Where success is divided, the court may look to the issues to determine if one party has enjoyed greater success. The court will look at the primary or the more important issues to determine if one party was more successful than the other.

[10] Where success is divided, the court may apportion costs as appropriate: r. 24(6).

[11] In deciding whether a party acted reasonably, the court is to consider whether an offer to settle was served.

[12] In determining entitlement and the amount of costs, the court is to consider the reasonableness or unreasonableness of the parties.

Success

[13] The mother was the more successful party in this case. She was successful on the most consequential issue raised by the parties, namely relocation of their child. On the issue of decision-making responsibility, again the mother was more successful in that final decision-making responsibility was granted to her.

Reasonable Behaviour

[14] The father acted reasonably by delivering an offer to settle. The father was particularly reasonable in offering to settle the issue of decision-making responsibility based upon the success or not of the mother’s relocation claim. The father’s attempts to involve the Children’s Lawyer in this case, in the manner that he did, appears at least at the later stage in this case was for the purpose of delay. This was not reasonable.

[15] He argues that the mother acted unreasonably by bringing a summary judgment motion, which was not granted, and also changed her request regarding relocation just months before the trial started. I do not agree that the mother acted unreasonably in bringing the summary judgment motion. As Grace J. wrote in his endorsement, while “the respondent’s decision to pursue a summary judgment motion was fraught with risk, I understand why it was brought both from a theoretical and practical perspective. It was a good but difficult try.” Justice Grace ordered that costs of $7,500 all inclusive are fixed “as being attributable to steps taken in relation to the summary judgment motion that will endure through the trial. That amount is payable by the person and in the manner ordered by the trial judge.”

[16] I do not find that the mother acted unreasonably in changing her request to relocate to Winnipeg. She notified the father in a timely manner of this request. This part of her plan for the care of the child was only a part of the case. The father did not indicate the prejudice to him in the mother making this change. At most, the prejudice was that the affidavits used on the summary judgment motion, which were expected to be used at trial, had to be redrafted to take into account the new location request. The delay in having this matter tried because of the pandemic resulted in the most significant reason why the affidavit evidence had to be updated.

[17] I find that the mother acted reasonably in this case. She delivered an offer to settle.

[18] The mother is entitled to her costs of this case.

Amount of Costs

[19] The issues raised in this case were of the utmost importance to the parties. The nature of the relationship each parent would have with the child was at stake.

[20] The issue of relocation was factually and legally complex. The recently enacted legislation dealing with relocation had to be considered.

[21] The mother’s bill of costs form filed was a list of dates, steps, hourly rates, time spent and amount claimed. It did not detail how the actions taken related to the particular steps that have to be taken to advance the case. The form provided by mother’s counsel was not helpful. The court would find it more helpful if counsel would consider preparing their costs submissions by modifying as necessary the civil Rules costs outline.

[22] I am unable to compare the time spent in this case by both parties, as the father’s counsel did not have this information from the counsel who preceded her on this case.

[23] The mother seeks costs of $33,500 made up of $25,000 for trial, $1,000 fixed on consent and $7,500 as fixed by Grace J. inclusive of taxes and disbursements. This appears to be a full indemnity request. The father also objected to the time spent by the mother’s counsel in relation to preparing her bills of costs and costs submissions.

[24] It appears from the mother’s counsel’s bill of costs that she spent 5 hours preparing costs submissions (claiming $1,500) and the clerk spent 7.6 hours (claiming $1,520). While the amount seems high, I cannot conclude that the time spent was so inordinate as to be unreasonable, based on the length of time the case was ongoing and the issues raised.

[25] The lawyer’s fees and rates were not unreasonable.

[26] The father’s ability to pay support is limited in that he is in receipt of ODSP. In Weber v. Weber, 2020 ONSC 6855, at para. 11, the court noted that when determining costs in accordance with the principles set forth in Mattina that it was important not to “unduly [deter] potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences.” As well, a costs award should not jeopardize a parent’s ability to exercise access: see Bolduc v. Bolduc, 2006 CarswellOnt 6559, at para. 10.

[27] Taking into account all of the factors referred to, I find that the reasonable and proportionate costs to be paid by the father to the mother in this case is $15,000 inclusive of disbursements and applicable taxes. This amount includes the $1,000 of costs agreed to by the parties on account of the child support issue and the costs fixed by Grace J. in his endorsement of February 5, 2020.

[28] The father may repay these costs at the rate of $300 each month commencing on February 1, 2022. However, if the father is more than 30 days in default of any ongoing support or costs order payment, the entire amount of this costs award then outstanding shall become immediately due and payable.

“Justice B. Tobin”

Justice B. Tobin

Date: December 21, 2021