Court File and Parties

COURT FILE NO.: FS-21-00044551-0000 DATE: 2022-09-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andy Dabideen, Applicant AND: Shari Ghanny, Respondent

BEFORE: Kurz J.

COUNSEL: Eric Sadvari, for the Applicant Brian Burke and Crystal Heidari, for the Respondent

HEARD: May 25, 2022

COSTS ENDORSEMENT

[1] On June 16, 2022, I released my decision in cross motions by the parties regarding parenting arrangements for their two-year old child, M, mobility and daycare arrangements (2022 ONSC 3600). In brief, I ordered that the parties equally share parenting time and decision-making for M on a 2-2-3 arrangement, with no right of first refusal. I found that if the Respondent mother moves to a location in Mississauga that is no more than a half hour drive, in regular traffic, from the parties’ matrimonial home, the move will not be considered a relocation as defined by the Divorce Act. I further ordered that until the mother moves from the matrimonial home, the child’s daycare shall not change. Once she moves, the daycare shall be located roughly equidistant from their homes.

[2] Regarding costs, I found there was divided success, although the Applicant father was successful in the issue that was most in contention between the parties, immediate parenting arrangements. I granted the mother the right to move in Peel, although the geographic limits I allowed in Peel were somewhat attenuated compared to the mother’s request. The result regarding daycare was divided.

[3] The father seeks full indemnity costs of $35,747.55. He argues that he served three offers to settle which meet the formal requirements of r. 18 because he received a result as favourable or more favourable than his offer (r. 18(14)) regarding both parenting and mobility. He also argues that the mother’s original position on significantly limiting his parenting time, which moderated during the course of argument, was unreasonable. That should also attract an enhanced costs award. On the other hand, he asserts that his position was reasonable throughout the proceedings.

[4] The mother counters that no costs should be ordered because she litigated in good faith and based on her love and concern for the child. She points out that the father’s first offer, of November 16, 2021, was part of broader and non-severable offer, which cannot be considered under r. 18(14). Further, her positions were always reasonable, and child focussed. They only evolved during the course of argument to reflect the mother’s reasonable flexibility in finding a way to meet the child’s best interests. She should not be punished for allowing her position to evolve. That fact is reflected in her willingness to move towards equal shared parenting within a limited period of time.

[5] In Forbes v. Forbes, 2022 ONSC 21787, I set out the general legal principles that apply to the determination of costs in family law proceedings. I rely on those principles in making this decision.

[6] In particular, regarding the other’s argument that generally costs should not be payable when parenting issues are argued in good faith, that principle is no longer part of our law. Judges and lawyers have come to understand that litigation is costly and corrosive to already sundered families. As the Court of Appeal pointed out in Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432 (Ont. C.A.), at para. 8, one of the fundamental purposes of modern costs rules in family law are “to discourage and sanction inappropriate behaviour by litigants” (citing Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22).

[7] Curtis J. of the Ontario Court of Justice reflected the modern view of costs in family law proceedings when she stated the following in Sabo v. Sabo, [2013] O.J. No. 4628 (O.C.J.), as follows at para. 38:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation.

[8] Here, I find that the father is entitled to his costs of this motion on a full indemnity basis for the issues of parenting time and mobility. The father made separate offers on each issue on March 1, 2022. He should have those costs from that time onward, subject to the other factors set out below. That scale of costs arises because the result of the two offers met the terms of r. 18(14). In fact, the offers and my endorsement were quite similar regarding those two issues. They need have identically matched the terms of my order: Jackson v. Mayerle, 2016 ONSC 1556, at para. 47. I may also consider the father’s November 16, 2021 offer under r. 18(16), even though it does not meet the conditions of r. 18(14).

[9] Nonetheless, the results of the motion were divided. The father did not succeed regarding the issue of the location of the daycare. But that issue, while important to the parties, was ancillary to the central issues of mobility and parenting time.

[10] Regarding reasonable conduct, the mother points out that the father unnecessarily required her to file materials relating to parenting time issues, lest he argue that she has no standing to do so.

[11] All of that being said, I am still called upon to consider the principles of fairness, proportionality, and the reasonable expectations of the party called upon to pay costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.).

[12] When considering proportionality and the reasonable expectations of the mother, I note that her counsel’s full indemnity costs are set at $16,975.43 while those of the father are more than double that amount. Of course, I did not ask for bills of costs before I released my decision, so it can be argued that the mother’s bill of costs was deliberately low in light of my decision. I do not assume that to be the case. I have had enough dealings with Mr. Burke to presume his integrity in that regard.

[13] Perhaps the civil practice of requiring the parties to provide bills of costs at the motion and the court seeking out the parties’ costs demands, if successful, at the time of argument should be adopted more universally in family law proceedings.

[14] I note that Mr. Burke’s bill of costs included a very proportionate use of his own time, with much of the work performed by lesser billing associates.

[15] As Mr. Burke pointed out, the father’s counsel included their offer regarding the issue of costs in their costs submissions. For the reasons that were set out in his submissions, I agree that the practice of including such offers in costs submissions is not appropriate and should not be encouraged. I have not reviewed it.

[16] In considering all of the factors set out above, I find that costs of $25,000 are fair, reasonable and proportionate in the circumstances. Although higher than Mr. Burke’s billings, they remain within the reasonable expectations of the parties.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: September 14, 2022