Court File and Parties

COURT FILE NO.: FC1116/17 DATE: 2022/01/04 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Deborah Friesen, Applicant AND: Mazin Jillood, Respondent

BEFORE: T. Price J.

COUNSEL: David Winninger - Counsel for the Applicant Jodi L. Feldman - Counsel for the Respondent Christina Ninham – Counsel for the Children’s Lawyer

HEARD: In Chambers, based on written submissions

COSTS ENDORSEMENT

[1] I allowed Mr. Winninger to file his costs submissions late because he had been engaged in a trial at the time of the filing deadline.

[2] In my endorsement with respect of the substantive motions before the court (Friesen v. Jillood, 2021 ONSC 7878), I noted that their history began with a motion brought by Mr. Jillood (“Mazin”), seeking, on a Form 14B Motion Form dated September 18, 2021, supported by two affidavits the return to his care of the parties’ son U. for school attendance purposes. One of the affidavits, sworn September 9, 2021, was never placed in the court file or presented to me.

[3] In response to that motion, Deborah Friesen (“Deborah”) brought a cross-motion returnable October 5, 2021. That motion, which sought relief similar to that sought by Mazin, but for U. to attend a different school, was adjourned to November 10, 2021. Mazin then brought a cross-motion to the cross-motion, also returnable November 10, 2021.

[4] I recite this history because, in her submissions, Ms. Feldman wrote that Mazin “was obliged to bring a cross-motion… seeking an order that U. continue to attend” Al-Taqwa Academy.

[5] While what Ms. Feldman submitted was correctly identified procedurally, I am not sure that Mazin was “obliged” to bring a cross-motion. His issue was before the court on his first motion, but I understand that the original materials filed by a different counsel were inflammatory and inappropriate. Ms. Feldman elected to prepare materials which she was confident more appropriately stated Mazin’s case. She is not to be faulted for having done so.

[6] It was and remains Mazin’s position that he removed U. from Deborah’s care because she failed to return U. to him in early September in order that U. could begin the new school year at Al-Taqwa, as the parties had agreed.

[7] Ms. Feldman submits that her client was entirely successful on the motion and that he should be entitled to an award of costs of $7,485.12, an amount equal to 60% of total legal fees charged by her for the motions.

[8] Mr. Winninger submits that success on the motion was divided because I gave Deborah the option of having week-about care of U., provided that she complies with certain other terms and conditions in my order. I granted Deborah until December 21, 2021 to decide whether she would accept the opportunity afforded her by my order. I do not know her decision.

[9] What the order made clear, however, is that if Deborah did not exercise the option or, having exercised it, “at any time” failed to “fully comply” with the conditions imposed upon her, U. would “resume temporary residence” with his father each weekday for the remainder of the current school year. If that were to occur, Deborah’s parenting time with U. would occur on three weekends out of four each month.

[10] Because neither party served an offer to settle the motions, I need only have regard to Rule 24 when determining costs.

Family Law Rules 24(1) and 24(6)

[11] While Rule 24(1) provides that the “successful party” is presumptively entitled to costs, I must first determine whether there is one successful party or whether success was divided. The presumption of Rule 24(1) can be rebutted under Rule 24(6) “if success in the step in a case is divided”, in which case I may apportion costs “as appropriate.”

[12] There were two issues before the court on the motions: where was U. to attend school, and where would he be residing while doing so?

[13] On the first of the two issues, Deborah requested an order that U. “be permitted to attend grade 3 at John Wise Elementary school in St. Thomas Ontario”, while Mazin sought an order that U. “shall continue to attend Al-Taqwa Academy for his schooling” during the 2021/2022 school year.

[14] Clearly, Mazin was the successful party on the first issue.

[15] Mr. Winninger seeks to soften his client’s loss on this issue by suggesting that the order I made was contrary to U.’s wishes and was made in the face of there being no agreement between the parties that U. would attend Al-Taqwa as of September 2021.

[16] Regardless of the factual accuracy or otherwise of that submission, it ignores my finding that, because of the evolution in U.’s living arrangements prior to September 2021, Deborah had lost the legal authority to solely make decisions with respect to U.’s education, and Mazin had acquired an equal right to make educational decisions for U.

[17] I further pointed out in my decision that Mazin had attempted to challenge the unilateral decision made by Deborah via his original motion but had been “rebuffed” by the court system.

[18] Mr. Winninger’s submission further overlooks the fact that I specifically noted that I was not provided with any evidence by his client as to how long her agreement to allow U. to “try” attending Al-Taqwa was to be in effect. Accordingly, it was clear that I found it to be entirely consistent with the facts presented to me by the parties that the continued attendance by U. at Al-Taqwa had been tacitly agreed upon by the parties. Furthermore, some collateral support for this view was found in the fact that U. had been registered at the end of the prior school year, in June 2021, to return to Al-Taqwa as of September 2021. Nowhere in her materials did Deborah suggest that the registration of U. to return to Al-Taqwa had been undertaken surreptitiously.

[19] As for the submission that U. did not like attending Al-Taqwa, Mr. Winninger’s submission ignored the findings I made about the factual difficulties and inconsistencies in U.’s conversations with Mr. DeLuca, the OCL Clinical Investigator. It also overlooked U.’s statement to Mr. DeLuca on October 30, 2021 that he was “friends with everyone at school except one or two boys”, which suggested to me that, whatever view he may have previously espoused about Al-Taqwa, he had settled in and was enjoying his experience there.

[20] Mr. Winninger’s submission further ignores my finding that “the underlying experiences complained about by U.” at Al-Taqwa were not “established for the purposes of this motion.”

[21] Turning to the issue of where U. would reside while attending Al-Taqwa, each of the parties sought an order that U. reside with them.

[22] Mazin’s Notice of Motion was more specific, in that it requested that U.’s residence with him occur “each weekday during the 2021/2022 school year” while Deborah’s did not contain any term respecting when U. was to reside with his father.

[23] Given that the default position set out in my order was that U. would reside with Mazin unless Deborah fully complied with the terms and conditions which my order imposed on her, it is my conclusion that, while success was somewhat divided on the second issue, it broke substantially in favour of Mazin.

[24] Accordingly, I will be apportioning costs to a limited degree on the second issue in accordance with Rule 24(6). That apportionment will effectively reduce, to some extent, the costs which would otherwise be awarded to Mazin for his substantial overall success on the motion. (Likins v. MacKenzie, [2004] O.J. No. 2236 at para. 11)

Rules 24(4), 24(5) – Successful Party Behaving Unreasonably

[25] While Mr. Winninger does not use the term “unreasonable behaviour”, nor does he refer to these Rules, he must have had their concepts in mind when he referred to the “reprehensible” abduction by Mazin of U. from Deborah, an act which he wrote was contrary to the best interests of U. and caused Mazin to have “unclean hands” which, he submitted, combined to “attract costs consequences to” Mazin.

[26] Under Rule 24(4), a successful party who has “behaved unreasonably during a case” may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.

[27] Rule 24(5) lists the factors to which I must have regard when determining whether a party behaved reasonably or unreasonably. Two of those factors pertain to offers to settle. None were made in this case.

[28] That leaves only the third of three factors to be considered under Rule 24(5) when deciding whether or not a successful party behaved unreasonably: “the party’s behaviour in relation to the issues from the time they arose.”

[29] In my previous endorsement, I addressed Mazin’s removal of U. from St. Thomas, writing that, “ the undenied allegation about the manner by which Mazin caused U. to return to his care in London on or about September 25, 2021 constituted self-help that cannot be countenanced by this court. By acting as he did, Mazin unnecessarily escalated the parents’ dispute, placing U. squarely in the middle while doing so. I appreciate that the courts are backlogged because of Covid-19, but self-help remedies are not a substitute for court rulings.”

[30] On the other hand, I also addressed Deborah’s actions, writing that, “[i]t was Deborah’s failure to return U. to the care of Mazin in September which precipitated his initial motion which was not heard for the administrative reasons noted”, and that “[t]he crisis addressed by this motion – where should U. be going to school now that his parents live in two different cities - has been brought on solely by Deborah’s unannounced move to St. Thomas in March, 2021.”

[31] Given those conclusions, together with my finding that “as of March 2021, if not before…U. was living with Mazin during the school week with Deborah’s ‘ consent, implied consent or acquiescence’” , I find that, to whatever extent Mazin’s decision to act unilaterally in removing U. from his mother’s care in September 2021 constituted unreasonable behaviour, Deborah’s precipitating actions contributed to it and were, themselves, unreasonable.

[32] Neither party can justifiably claim that they acted honourably throughout this entire episode.

[33] In my view, however, I also cannot disregard the fact that the series of motions concerning where U. would be attending school began before September 25, 2021, the day that, as I found, Mazin removed U. from Deborah’s care in St. Thomas. He did try to work within the rules and was denied a hearing at the first instance. While that does not excuse his later actions, it does work somewhat in his favour on the issue of whether he behaved reasonably or unreasonably “in relation to the issues from the time they arose.”

[34] Having regard to all of the events, I will be applying a reduction to the costs awarded to Mazin because of his failure to await the court’s ability to address his issues. If I were to not do so, I would, in effect, be indirectly approving his act of self-help, of which I have previously written about my disapproval.

Rule 24(12) - Setting Costs Amounts

[35] Under Rule 24(12)(a), when setting the amount of costs, I am required to consider “the reasonableness and proportionality” of a number of factors as they “relate to the importance and complexity of the issues”.

[36] The issues before the court were particularly important to both parties. That noted, they were not especially complex, particularly since the law is clear about changes to a child’s status quo by moving pending trial, as I noted in my initial endorsement.

[37] Accordingly, when assessing the costs factors set out under Rule 24(12)(a), I do so with regard to the issues being of significant importance to the parties, but of average complexity.

Rule 24(12)(a)(i) - Each Party’s Behaviour

[38] I have already addressed this issue.

Rule 24(12)(a)(ii) - Time Spent by Each Party

[39] Ms. Feldman submitted a Bill of Costs which indicated that she devoted 18.4 hours to the motions.

[40] Mr. Winninger indicated that he devoted 22.6 hours to the motions, although he concedes that some of that time was incurred in addressing Mazin’s original motion which did not proceed.

[41] Neither counsel, in my view, expended excessive time in their preparations for and attendance on the motion.

Rule 24(12)(a)(iii) - Any Written Offers to Settle, including those not meeting Rule 18

[42] As I have already noted, neither party served an offer to settle.

Rule 24(12)(a)(iv) - Legal Fees, including Number of Lawyers and Their Rates

[43] Both Ms. Feldman and Mr. Winninger are senior counsel. Ms. Feldman has 37 years of experience. Mr. Winninger has 41 years of experience. Neither indicates that a claim is made for the efforts of others.

[44] Ms. Feldman charges $600.00 per hour. Mr. Winninger is funded by Legal Aid at the rate of $140.00 per hour. He did not inform me of his normal hourly rate, which I would have to consider had he told me. (Laidman v. Pasalic, [2020] O.J. No. 5020, and cases cited therein at para. 23)

[45] Mr. Winninger takes issue with the hourly rate charged by Ms. Feldman, submitting that, while it “may be consistent with what lawyers of her seniority are charging in Toronto,” Mazin “could have hired a London lawyer whose hourly rate could have been half that of Ms. Feldman, or $300.00 per hour.” He submits that Mazin’s claim for costs in the amount of $7,485.12 is excessive.

[46] Similar submissions were made before Justice N. Gregson in Norris v. Morocco, [2020] O.J. No. 2923. In that case, counsel from Mississauga charged $650.00 per hour, whereas local counsel of similar experience, from Welland, charged $300.00 per hour.

[47] Justice Gregson wrote that, “[a]lthough Ms. Dosanjh's hourly rate seems rather high considering Ms. Guilbeault's hourly rate, I have no evidence before me to suggest Ms. Dosanjh's hourly rate is excessive given that her practice is in Mississauga rather than in the Niagara Region.”

[48] Justice Gregson went on to cite the Court of Appeal decision in Boucher v. Public Council (Ontario), (2004), noting that, when setting costs, the court’s “ award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.”

[49] Ms. Feldman cited the decision of the Ontario Court of Appeal in Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412, where it was held that ,“[a]s the wording of [Rule 24(12)] makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”

[50] In Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236, Justice Epstein, writing on behalf of a unanimous Court of Appeal panel on a costs appeal, wrote:

52 As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."

[51] Given that the court’s task in setting costs is to determine an amount that is proportional and reasonable in the circumstances and, in doing so, must also bear in mind that it is to set an amount that is reasonable for the unsuccessful party to pay, I must agree with Justice Gregson that the rate being charged by Ms. Feldman cannot, without evidence, be said to be excessive for the locality in which she practices. Whether it is excessive for the City of London is somewhat moot, given that I am to arrive at a global figure that is fair and reasonable for Mr. Winninger’s client to pay.

[52] I am also mindful of the following comments written by Justice A. Pazaratz in Scipione v. Del Sordo, 2015 ONSC 5982, [2015] O.J. No. 5130:

113 But even where the "full recovery" provisions of the Rules are triggered -- either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith -- quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner 2015 ONCJ 318 (OCJ). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.) (2003), 67 O.R. (3d) 181 (ONT. C.A.) (Bolding added)

Rule 24(12)(a)(vi) - Other Expenses Properly Paid or Payable

[53] The only other expense payable by either lawyer is the HST on the fees and that is a normal expenditure allowed when setting costs.

Rule 24(12)(b) – Any Other Relevant Matter

[54] Mr. Winninger submits that Deborah “can ill-afford to pay the kind of costs” sought by Ms. Feldman, given that she is said to earn only $930.00 per month at a minimum-wage job and that, apart from the child tax credit, she has no other income. I was provided with no evidence to support these assertions, but it is clear from the evidence on the motion that Deborah is a person of limited means.

[55] I was also informed that the issue of retroactive child support remains alive and that Mazin has paid no child support for the period when Deborah cared for all four children or the period when she cared for three children and Mazin cared for one.

[56] The ability of the unsuccessful party to pay costs is a factor to be considered when setting costs. Justice A. Pazaratz addressed this issue as follows in Laidman v. Pasalic as follows:

24 The paternal grandmother asks that any costs order should take into account her ability to pay. The financial implications of legal fees - and costs orders - must form part of the costs analysis. But this can be a complicated issue. a. A costs order should take into consideration the ability of a party to pay costs. M.(C.A.) v. M.(D.) (2003), 67 O.R. (3d) 181 (Ont. CA). b. Although they are not specified in Rule 24 as factors in determining costs, the financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien 2012 ONSC 97 (SCJ). c. A party's limited financial circumstances cannot be used as a shield against any liability for costs. Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih (SCJ); Dhillon v. Gill 2020 ONCJ 68 (OCJ). But ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. Gobin v. Gobin (2009) 2009 ONCJ 278, 71 R.F.L. (6th) 209 (OCJ). d. Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. Culp v. Culp 2019 ONSC 7051 (SCJ); Mark v. Bhangari 2010 ONSC 4638 (SCJ). e. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). Peers v. Poupore 2008 ONCJ 615 (OCJ); Lawrence v. Lawrence 2017 ONCJ 431 (OCJ). f. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney 2016 ONSC 3238 (SCJ); T.L. v. D.S. 2020 ONCJ 9 (OCJ); Balsmeier v. Balsmeier 2016 ONSC 3485 (SCJ). g. All family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos 2004 ONCJ 141.

25 The impact of a costs determination on household budgets applies to both unsuccessful and successful parties. An onerous costs order against an unsuccessful custodial parent may impact on that parent's ability to provide for a child in their care. But equally, an inadequate costs order in favour of a successful custodial parent may result in similar deprivation for a child in their care. In both instances, we want to ensure that litigation expenses do not impoverish the household where the child resides. D.D. & F.D. v. H.G. 2020 ONSC 1919 (SCJ); F.K. v. A.K. and CAS of Hamilton 2020 ONSC 4927 (SCJ).

[57] While many of the factors listed by Justice Pazaratz are in Deborah’s favour, the one that weighs most heavily against her is that her lessened financial circumstances are less of a mitigating factor in this case because she precipitated what might reasonably be called “unnecessary proceedings.”

Analysis

[58] It is my conclusion that Mazin is entitled to costs of the motion. The hourly rate charged by Ms. Feldman is not a matter I need concern myself with so long as the amount of costs I set are fair and reasonable for Deborah to pay, given her limited financial resources, and are proportional to the issues on the motion. Mazin’s costs are to be reduced to some degree because of Deborah’s partial success on the second issue, and his self-help in removing U. from St. Thomas while seeking a court order allowing him to do so.

[59] Bearing all of these factors in mind, I find that it would be fair and reasonable for Deborah to pay Mazin, as the primarily successful party on the motion, costs in the amount of $4,500.00, all-inclusive.

[60] Given that support issues remain unresolved, I also find it to be fair and reasonable to defer any requirement that Deborah pay costs to Mazin until after the parties have settled or a court has ruled upon the outstanding support issues.

Order

1. The Applicant, Deborah Friesen, shall pay costs to the Respondent, Mazin Jillood, in the amount of $4,500.00, all-inclusive.
2. Payment of the costs is deferred until the parties settle or there has been a judgment or other court ruling determining to whom child support and, if claimed, spousal support, is payable and in what amount or amounts.

Justice T. Price Date: January 4, 2022