COURT FILE NO.: FC-13-19-1
DATE: 2022/09/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fathia Jumale, Applicant
AND
Abdillahi Mahamed, Respondent
BEFORE: Blishen J.
COUNSEL: Thomas Hunter, for the Applicant
Diana Aoun, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
Introduction
[1] The focus of this 10-day trial was on the Respondent (R), Mr. Mahamed’s parenting time with the three children of the marriage and the Applicant (A), Ms. Jumale’s request for a permanent restraining order.
[2] Both parties argue they were successful and are entitled to substantial indemnity costs. The A requests $37,404.49 and the R requests a similar amount, $37,151.20.
General Principles
[3] Modern costs rules are designed to foster four fundamental purposes:
to partially indemnify successful litigants,
to encourage settlement,
to discourage and sanction inappropriate behaviour by litigants, and
to ensure that cases are dealt with justly pursuant to r. 2 (2) of the Family Law Rules O.Reg. 114/99 as am. (FLRs). See Mattina v. Mattina, 2018 ONCA 867.
[4] Pursuant to r. 24 (1) of the Family Law Rules, O.Reg. 114/99 as am., there is a presumption that a successful party is entitled to costs.
[5] Although consideration of success is the starting point in determining costs, the successful party is not always entitled to costs. As noted by the Ontario Court of Appeal in Mattina v. Mattina:
An award of costs is subject to: the factors listed in r. 24(12),
r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.
Success
[6] At the end of the trial which included the admission of further affidavit evidence by both parties and submissions, the A requested no parenting time for the R and a permanent restraining order. The R requested an order implementing the recommendations of the OCL Investigator in her October 2019 report, despite changed circumstances.
[7] My order was not what either party requested at trial.
[8] Ms. Jumale did not obtain an order that Mr. Mahamed have no parenting time, nor did she obtain a permanent restraining order.
[9] Mr. Mahamed did not obtain an order implementing the recommendations of the OCL. However, prior to the trial re-commencing in September 2020, the R provided a formal Offer to Settle, which complied with the procedural requirements under Rule 18 of the FLRs, which must be considered in measuring success.
[10] Mr. Mahamed’s Offer proposed parenting time with his son, Z. on a graduated basis, time with his daughters in accordance with their wishes and telephone contact with all three children once a week.
[11] Although Mr. Mahamed obtained an order for supervised parenting time with Z., it was to commence only after preconditions including: individual therapy, a written apology to the children and reunification counselling and only when such parenting time was deemed appropriate by the reunification counsellor. It remains to be seen if reunification counselling begins and whether it is
successful in re-establishing some sort of beneficial relationship between Mr. Mahamed and his son. He did not obtain an order for the telephone contact proposed in his Offer.
Assessing Costs
[12] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See Beaver v. Hill, 2018 ONCA 840.
[13] Sub rule 24 (12) of the FLRs sets out the relevant factors in determining the quantum of costs:
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.
[14] In addition to the factors listed under r. 24 (12) an award of costs is also subject to r. 24 (4) pertaining to unreasonable conduct of a successful party, r. 24 (8) pertaining to bad faith, r. 18 (14) pertaining to offers to settle and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918 (, at para. 94).
[15] In determining reasonableness r. 24(5) indicates:
Decision on reasonableness
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99,
r. 24 (5).
[16] In this case I find both parties behaved unreasonably.
[17] In my decision released January 28, 2022, I found difficulties with the reliability and credibility of both parties and outlined significant concerns regarding the behaviour of both parents.
Mr. Mahamed
[18] Mr. Mahamed was grandiose and self-aggrandizing in his testimony. He exaggerated, raised his voice, and had difficulty controlling his emotions. This behaviour was also evident in the McDonald’s parking lot when the maternal grandmother was acting as exchange supervisor for a visit with Z. on June 21, 2020. The distress this caused Z. was evident.
[19] When there was a delay in commencing visits in Dec. 2019, Mr. Mahamed sent a text message to Ms. Jumale indicating he would take matters into his own hands, attend at the school, and pick up Z to spend the weekend. Ms. Jumale alerted Z. who was distressed and refused to attend school that day.
[20] After a second mid-trial settlement conference in March 2020, an order was made for unsupervised access 4 hours every second weekend. It was suggested by Engelking J. that if Family Services Ottawa (FSO) closed due to the pandemic and could not facilitate transfers, private social workers could be retained by Mr. Mahamed. FSO did close. Although Mr. Mahamed had not seen Z. since the Fall of 2019, he did not retain private SWs but indicated, despite a restraining order, he could simply pick up the children from their home or Ms. Jumale could drop them off. When Ms. Jumale indicated it would be best that there be no visits, Mr. Mahamed then agreed to retain private social workers.
[21] When visits were eventually scheduled in June, July and August 2020, Mr Mahamed’s behaviour with the maternal grandmother in the parking lot June 21, 2020, contributed to Z.’s reluctance to go for visits thereafter. The last in person visit was October 6, 2019.
[22] The only subsequent contact was a telephone call in November 2020 during which Mr. Mahamed got upset, raised his voice, and told the children to “shut the fuck up”. Z. was understandably upset and fearful of his father.
[23] Mr. Mahamed left for East Africa in February 2021 with a plan to return to Ottawa with his new wife in September 2021. He had not seen the children since his last visit with Z in October 2019.
[24] Overall Mr. Mahamed’s behaviour in relation to the most important issue of parenting time with his children, was unreasonable and had a negative impact on Z. which contributed to the child’s reluctance to visit. This was extremely unfortunate as the first few visits in August, September and October 2019 were positive. The opportunity for Z. to develop a meaningful, positive, beneficial relationship with his father as recommended by the OCL was undermined.
Ms. Jumale
[25] Ms. Jumale was at times unresponsive while testifying and presented as a quiet, passive individual. This behaviour was also evident with respect to her parental role with her children.
[26] Ms. Jumale’s fear and lack of trust in Mr. Mahamed has been conveyed to the children and has to contributed to Z’s reluctance to see his father.
[27] Paragraph 110 (5) of my Supplementary Reasons for Judgement states:
- Ms. Jumale testified that she encouraged Z. to attend visits, but I find she did not actively, consistently encourage the children, including Z. to attend the visits after the receiving the OCL report in Oct. 2019. Even after two further court orders for access, Ms. Jumale did not provide meaningful guidance to her son. She abdicated her parental role which was to actively support the development and maintenance of Z.’s relationship with his father and to do all she reasonably could to follow thecourt orders. There is no evidence that she ever demonstrated she was in control nor that she made it clear to Z. there was no choice and he was required to attend. She was passive during the attempts by Brayden Supervision Services to facilitate the exchanges, offering little meaningful encouragement.
In Godard v. Godard, 2015 ONCA 568 the court stated at para 28:
[28] Although a child’s wishes, particularly the wishes of a child of S.’sage, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access orderup to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child
who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) atpara.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 43948 (Ont. S.C.);
and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.)
The court indicates that parents are not required to do the impossible but are required to do all they reasonably can to comply with an access order. More than encouragement is required and was not provided in this case.
Conclusion
[28] Assessing costs is “not simply a mechanical exercise”. See: Delellis v. Delellis and Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345. In that case, Justice Aston indicated as follows at para 9:
Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.
[29] Although Mr. Mahamed did obtain an order for some parenting time with Z., there are significant preconditions. I do not find him to be a successful party. Clearly Ms. Jumale was not successful in obtaining the orders she sought.
[30] Of the greatest significance in this case is that both parties behaved unreasonably and in so doing caused damage to what could have been a positive, beneficial, and meaningful relationship between Mr. Mahamed and Z. It remains to be seen if that damage can in any way be repaired.
7
[31] There will be no order for costs.
Date: September 30, 2022
6
COURT FILE NO.: FC-13-19-1
DATE: 2022/09/30
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Fathia Jumale, Applicant
AND
Abdillahi Mahamed, Respondent
BEFORE: Blishen J.
COUNSEL: Thomas Hunter, for the Applicant
Diana Aoun, for the Respondent
COSTS ENDORSEMENT
Blishen J.
Released: September 30, 2022