Aldush v. Alani , 2022 ONSC 3547

COURT FILE NO.: FC-19-2241

DATE: 2022-06-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amal Ahmed Mustafa Aldush, Applicant

AND

Mohammed Nouri Rasoul Alani, Respondent

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Stephanie Smith and Giulianna Ferri, Counsel for the Applicant

Sherif Rizk, Counsel for the Respondent

Deborah E. Bennett, Counsel for the Office of the Children’s Lawyer

HEARD: In writing

COSTS DECISION

M. Smith J

1On March 10, 2022, I released my decision regarding the Respondent Father’s motion (2022 ONSC 1536). The Father was seeking, amongst other things, an order for the return of all three children to their place of habitual residence in the United Arab Emirates (“UAE”) and an order that the Ontario Superior Court of Justice has no jurisdiction to determine the decision-making responsibility and/or parenting time issues pertaining to the children.

2The parties were encouraged to resolve the issue of costs, failing which, written costs submissions could be submitted.

3The Applicant Mother filed her written submissions and she seeks full indemnity costs in the amount of $48,259.30, inclusive of disbursements and H.S.T.

4The Father did not file any responding materials.

5For reasons that follow, the all-inclusive costs are fixed at $45,000, payable by the Father to the Mother.

Legal principles

6Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are at the discretion of the court. The framework in awarding costs is set out at r. 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”).

7Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the court shall consider the factors outlined in r. 24(12) of the FLR, which includes, without limitation, the importance and complexity of the issues, the parties’ behaviour, the time spent, written offers, and legal fees.

8Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under subrule 2 (2) of the FLR: see Mattina v. Mattina, 2018 ONCA 867.

9Proportionality and reasonableness are the touchstone considerations that needs to be applied when fixing an amount of costs. A successful party is not entitled to full recovery unless r. 18(14) and 24(8) are triggered: see Beaver v. Hill, 2018 ONCA 840 at paras. 4, 13 and 17.

Analysis

10This is one of those cases where an elevated award of costs is warranted.

11Since the filing of the Father’s motion in September 2020, the following steps and court appearances were held:

i. Exchange of affidavits in September and October 2020.

ii. Questioning of both parties on November 12, 2020.

iii. Motion scheduled but adjourned on January 8, 2021.

iv. Case Conference on February 19, 2021.

v. Mootness motion on June 9 and 10, 2021.

vi. Voir Dire on July 27 and 28, 2021.

vii. Jurisdiction motion on December 16, 2021.

12The Mother was wholly successful and she is presumptively entitled to her costs.

13The issues raised in the Father’s motion were of the utmost importance to all parties.

14This matter was complex, involving legal proceedings in two different jurisdictions, requiring the gathering of evidence from experts, and from the proceedings in the UAE.

15The hours spent by counsel for the Mother between September 2020 until the motion was heard in December 2021, were significant. While there was some duplication of work when two lawyers were working on the file, meriting a slight decrease in time, the work put forth by counsel was nonetheless proportionate and reasonable given the number of court appearances and issues to be decided.

16Considering their call to the bar, the hourly rate of $250 charged by the lawyers representing the Mother was reasonable.

17Two additional factors that favour costs at an elevated level are the Father’s unreasonable behaviour and bad faith throughout the proceedings, as well as the offers to settle served by the Mother.

18Dealing first with the offers to settle, the Mother made reasonable efforts to resolve this matter without the necessity of prolonging litigation. The Father did not respond to any of the Mother’s offers. The Mother made three offers to settle:

i. On November 20, 2020, the Mother served a severable offer to settle regarding the jurisdiction motion, parenting time, and decision-making responsibility. This offer was open for acceptance until the commencement of the motion scheduled to proceed on January 8, 2021.

ii. On February 26, 2021, shortly after the scheduling of the mootness motion, the Mother served an offer to settle the jurisdiction motion for all three children, together with parenting time and decision-making responsibility for the eldest child. This offer was open for acceptance until the commencement of the motion that had been scheduled to proceed on April 1, 2021 but was adjourned to a later date.

iii. On June 22, 2021, the Mother served an offer to settle regarding the jurisdiction motion for the last child. This offer was open for acceptance until the commencement of the jurisdiction motion, which was eventually heard on December 16, 2021.

19Some of the offers were severable and others were not. The issues of parenting time and decision-making responsibility have yet to be litigated but were included in the first two offers to settle for the eldest child. This means that the costs consequences in r. 18(14) of the FLA are not triggered for the first two offers to settle. Regarding the third offer to settle, the result of the motion was more favourable than the Mother’s offer to settle. The Mother is entitled to full recovery of costs from the date that the third offer to settle was served.

20Turning now to the Father’s behaviour, I find that he engaged in unreasonable behaviour and he acted in bad faith.

21In my Amended Reasons for Decision dated March 10, 2022, at paragraphs 9 and 10, I made these introductory remarks regarding the Father’s unreasonable conduct:

9Dealing first with the Father’s conduct, I find that he has not complied with several procedural court orders, causing delays in the proceedings. On February 19, 2021, the Father was ordered to file and serve the expert report prepared by Mr. Mohammed Sabra by no later than March 31, 2021. He failed to comply with this order. On May 26, 2021, the Father was ordered to disclose several expert-related documents by no later than May 28, 2021. The Voir Dire regarding the admissibility of the parties’ experts was scheduled to proceed on June 10, 2021. Remarkably, the Father was unable to comply with the May 26, 2021 order and the court proceedings were further delayed. On June 10, 2021, the Father was ordered, yet again, to produce further expert-related documents as well as Mr. Sabra’s curriculum vitae and a duly executed Form 20.2 Acknowledgment of Expert’s Duty. Then, in an even more remarkable turn of events, on the day of the Voir Dire, the court learned that not only did the Father not comply with the previous June 10, 2021 order, but he advised the court that Mr. Sabra was no longer his expert and that Mr. Hussain Mirza Ahmed was his new expert.

10The Father’s disregard of court orders should not be condoned but more importantly, his conduct has delayed these proceedings, which is contrary to the best interest of his children. The outcome of these proceedings has a life altering impact on the children. Delays such as these can cause undue stress to the children.

22In regards to the Father’s bad faith, I made these findings at paragraphs 12 to 18 of my Amended Reasons for Decision dated March 10, 2022:

12First, in the Father’s Answer dated April 15, 2020, he omits to advise the court that on March 19, 2020, the Ajman Sharia Court awarded custody of the children to the Mother. He also omits to plead that, on April 9, 2020, he appealed the decision to the UAE Court of Appeal. The Father’s pleadings regarding the foreign custody court proceedings are limited to the following: “Shortly thereafter, in 2018, I retained legal counsel in the United Arab Emirates and filed sole custody in accordance with the law in that country. The case is still before the courts.” The Father was not entirely candid in his Answer.

13Second, on July 28, 2020, the Father swears an Affidavit in Support of Claim for Custody or Access. The Father also omits to advise the court of the Ajman Sharia Court order awarding custody of the children to the Mother or that he appealed the decision. He only deposes the following: “Travel restriction on applicant (dated August 7, 2018), order to appear in UAE court (dated August 28, 2018).” The Father was not forthright with the status of the custody proceedings.

14Third, the Father filed two additional affidavits on September 17, 2020, and October 2, 2020, in support of the motion. In these affidavits, the Father failed to mention that custody of the children had been awarded to the Mother by the Ajman Sharia Court.

15Fourth, at para. 29 of the Father’s affidavit sworn on September 17, 2020, he deposes the following: “For greater specificity, I deny each and every allegation of physical, emotional, psychological/mental, and/or sexual abuse towards the Applicant and/or any of my children. I have never been charged of any offence towards my wife or children, and have no criminal record to suggest that I would do such things. Attached to this my affidavit, marked Exhibit “J”, is a true copy of the Criminal Record Clearance Certificate” (emphasis added). This statement was untrue. During questioning, he admitted that he had been charged in 2005 and 2008.

16Fifth, the Father was questioned on November 12, 2020. The Father was asked about the results of the hearings and he responded as follows: “Okay, the first case has ended in 2018 and for the children, its still going on. I’m waiting for the response from the court.” The first case was the proceeding dealing with the Mother’s obedience to the Father and her needing to obtain his permission to travel. The second case was the custody proceedings. Not only did the Father not mention that the Ajman Sharia Court had awarded custody to the Mother, but he failed to mention that he had appealed the decision to the UAE Court of Appeal. More significantly, the Father failed to mention that the hearing before the UAE Court of Appeal had taken place approximately 11 days before the questioning.

17Sixth, despite having retained Mr. Rizk in January 2020, the Father failed to provide any documents to the Mother regarding the custody proceedings in the UAE. During questioning, the Father admitted that he had “the records of all the appearances from the court”, yet none of those documents had been disclosed. I find it disturbing that the Father withheld documents that went to the heart of the motion that he had commenced in September 2020. Although the Father subsequently disclosed some documents from the UAE proceedings, I find that it is far from being complete. The Father has not provided any of the supporting documents that were filed with the Ajman Sharia Court or the UAE Court of Appeal.

18Seventh, as of November 6, 2019, the Father was aware that the Mother and the children were in Canada. Yet, the Father took no steps to advise the Mother of the status of the UAE custody proceedings. At his questioning, the Father testified that the court in the UAE was sending documents to the Mother’s parents’ home in Jordan. The Father was represented by counsel in Ontario as of January 2020. Through counsel, the Father should have taken the following steps: (i) communicated to the Mother and her counsel that on October 30, 2019, the Father had made representations to the Ajman Sharia Court regarding the custody of the children and that a decision was forthcoming; (ii) provide a copy of the March 19, 2020 decision from the Ajman Sharia Court to the Mother and her counsel, immediately upon receipt; (iii) advise and provide a copy of the Father’s appeal to the Mother and her counsel, immediately upon filing; (iv) advise and provide to the Mother and her counsel a copy of the UAE Court of Appeal decision dated April 9, 2020 granting permission to proceed with the appeal, immediately upon receipt; (v) advise the Mother and her counsel of the date of the hearing before the UAE Court of Appeal, as soon as he was advised of same; and (vi) provide a copy of the UAE Court of Appeal decision, immediately upon receipt.

23I find that throughout these proceedings, the Father seemed to have lost sight that the outcome of the motions before the court was life altering for the children. At the outset of these proceedings, counsel for the Office of the Children’s Lawyer reported to the court that the children were aware that these proceedings were taking place and the children were experiencing anxiety. When dealing with legal matters that have a direct impact upon the children’s well-being and mental health, it is of the utmost importance that the matter advances in a timely and diligent manner. Here, the Father not only engaged in behaviour that was unreasonable and dishonest, but his conduct was also the reason that the proceedings were significantly delayed. These delays invariably heightened the children’s anxiety and stress surrounding these proceedings.

24The Father’s inappropriate behaviour must be sanctioned by awarding costs against him on an elevated scale.

Conclusion

25For these reasons and in exercising my discretion, the Father is required to pay costs in the all-inclusive amount of $45,000. This payment shall be made to the Mother, within 30 days of this Costs Decision.

M. Smith J