Court File and Parties

COURT FILE NO.: FC-16-537 DATE: 2023/01/09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Fatima-Ezzahra El Ouazzani, Applicant – and – Noureddine Chabini, Respondent

Counsel: Eve Theriault, for the Applicant Gonen Snir, for the Respondent

HEARD: In writing

Costs Endorsement

Justice A. Doyle

[1] On November 1, 2022, after a 9-day trial, the court issued a final order incorporating the parties’ consent regarding parenting, ongoing child support payable by the husband to the wife and that any future s.7 special and extraordinary expenses incurred by the wife, to which she is requesting contribution from the husband, will require her to consult with the husband to obtain his consent. That consent shall not be unreasonably withheld.

[2] The court also issued the following final judgment:

• The husband will pay the wife an equalization payment of $24,128.96 by way of a roll-over from his pension and grossed up by the tax payable to the wife when she receives the pension income.
• From the wife’s share of the net proceeds from the sale of the matrimonial home, the wife will pay the following to the husband: reimbursement of the legal aid loan, monies she withdrew from the joint account and monies owed for post-separation adjustments.
• From the husband’s share of the net proceeds from the sale of the matrimonial home, the husband will pay the following amounts to the wife: outstanding costs order, retroactive child support and retroactive s. 7 special and extraordinary expenses.
• The husband will pay ongoing spousal support in the amount of $2,000.00 per month for 18 months.
• The husband’s claim for occupation rent was dismissed.

[3] If the parties were unable to agree on the issue of costs, they were to provide the court with written submissions.

[4] Having considered the parties’ costs submissions, the Family Law Rules, O.Reg. 114/99 as am., and the parties’ offers to settle, the court orders no costs.

Wife’s Position

[5] The wife is seeking costs on a partial indemnity basis in the amount of $28,000 to be paid from the husband’s share of the net proceeds from the sale of the matrimonial balance.

[6] The wife submits that she was successful on the dominant issues at trial: spousal support and equalization payment. In addition, the court granted her retroactive child support and s. 7 expenses. The husband’s claim for occupation rent was dismissed.

[7] The wife’s ability to serve a comprehensive offer was hampered by the husband’s delay in providing financial disclosure. On May 26, 2021, Justice Swartz ordered itemized financial disclosure be provided by June 30, 2021. The husband provided some of the disclosure in accordance with the timeline set out by the court order but the balance was not disclosed until July 14, 2022, less than 10 weeks before trial.

[8] The wife’s offer to settle dated July 6, 2022 was severable and provided for among other things: parenting time, child support (ongoing and retroactive), spousal support and an equalization payment.

[9] The wife submits that the husband caused unnecessary costs by not accepting some of the facts that were included in her Request to Admit dated August 2022.

[10] Also, the wife is seeking her costs from December 10, 2021 as the costs on the appearances before that date were determined by the court.

Husband’s Position

[11] The husband submits that there was divided success and as suggested by the court in its final decision, each party should bear their own costs.

[12] Since the wife is insisting on costs, the husband is claiming his own costs on a full indemnity basis in the amount of $111,266.30 (including HST) and $26,305 on a partial indemnity basis for the legal fees incurred for previous counsel.

[13] The husband submits that he was more successful on all of the issues including: the amount of the equalization payment, post-separation adjustments, spousal support and s. 7 expenses. He consented to ongoing child support and child support arrears.

[14] He submits that the wife’s conduct was unreasonable because she:

• Delayed the matter proceeding to trial by bringing unsubstantiated claims and not admitting obvious facts;
• Claimed s.7 expenses with no prior consultation from the husband;
• Claimed indefinite spousal support while the court granted time-limited support;
• Failed to provide disclosure on her vehicle acquired during the marriage, the valuation of her jewelry, her inheritances and the land she owned;
• Did not obtain her own independent valuation of the husband’s Moroccan properties and there was court time wasted on a needless attack on the expert’s qualifications and his expert opinions; and
• Did not accept some of the post-separation expenses.

[15] The husband sent numerous offers to settle in an attempt to narrow the issues and shorten the trial.

[16] In an attempt to reduce trial time, the husband served a Request to Admit which was not accepted by the wife.

Legal Principles

[17] In Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal stated that modern 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. (Rule 2(2) of the Family Law Rules).

[18] There is a presumption of costs in favour of the successful party. An award of costs is subject to the factors listed in Rule 24(12).

Analysis

[19] Firstly, the court must determine who was the more successful party.

[20] Where the parties have divided success, the court may apportion costs as appropriate (Rule 24(6)).

[21] There were many issues before the court and the parties’ positions changed over the course of the trial.

[22] This is not a case for an award of costs because:

• Each party had success on some of the issues;
• Both parties added to the cost and delay of the trial;
• Both refused to engage in working with their respective Requests to Admit that were served;
• For example, the wife initially put forward the position on the values of the Moroccan properties based on the wife’s personal opinion and then in her final submissions she relied on the values put forward by the husband’s experts with some tweaking;
• The wife advanced a claim for many s. 7 expenses without prior consultation or notice to the husband on some of the expenses; and
• The husband delayed in providing financial disclosure and did not pay an outstanding costs order.

[23] Although both parties served various offers to settle which demonstrated an interest in narrowing the issues or resolving some of the issues, none of the offers to settle engaged rule 18 of the Family Law Rules.

[24] Accordingly, there will be no order as to costs.

Justice A. Doyle Released: January 9, 2023