COURT FILE NO.: FC-15-774-1
DATE: 2023/08/31
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ATALLAH DAHER SALAMEH Applicant (Responding Party)
– and –
DANIA KHANAFER Respondent (Moving Party)
Self-represented, for the Applicant
Self-represented, for the Respondent
HEARD: April 4, 2023
AMENDED Costs decision
Audet J.
[1] On June 29, 2023, I released my decision in the context of a Motion to Change brought by the Applicant father, in which the Respondent mother brought a cross-motion seeking orders prohibiting the father from taking any further steps in the case without leave of the court and until he complied with previous court orders.
[2] If the parties were unable to agree on costs, I invited them to provide me with written submissions and I would decide. Having received and considered those submissions, I award the mother costs in the amount of $17,000, based on the following main reasons:
1 - The mother was entirely successful in this motion. As such, she is presumed entitled to her costs on a partial indemnity basis.
2 - The father’s litigation conduct was unreasonable. This conclusion is unquestionable based on the findings I made in my June 29 decision. In addition to this, it took significant efforts on the part of the mother to finally be able to book this motion hearing, only to have the father improperly bring a cross-motion without consultation or leave six days before the return of the motion, which significantly increased the mother’s legal fees given the extent of the materials filed by the father (his affidavit was 150 pages long). This justifies an award of costs on a substantial indemnity basis.
3 - There is a long history of legal proceedings in this matter. While the issues before me in this motion were not particularly complex, the litigation itself was made extremely challenging due to the father’s past and ongoing litigation behaviour. In my decision, I concluded that the father had used and continued to use the legal system as a sword to intimidate and harass the mother, to run up her legal costs and to cause her financial hardship.
4 - For those reasons, it was entirely reasonable for the mother to retain experienced legal counsel to represent her in this proceeding. The father has been ordered to pay significant costs in the past due to his abusive litigation conduct, and he knew or ought to have known that the same kind of behaviour would result in significant costs being awarded against him in the context of this Motion to Change. Based on the above, I find that the hourly rate of $400 charged by the lead counsel in this file was reasonable, and one which the father ought to have expected he may have to pay if unsuccessful.
5 - I have reviewed the Bill of Costs provided by the mother and find that the number of hours charged for this motion is very high, and includes duplications (for instance, two lawyers and two legal students worked on drafting the motion materials and completing research, for a total of 39 hours on account of – only – the drafting of motion materials). If the work completed had to do with other court appearances, the Bill of Costs provided does not provide sufficient detail to allow me to make that determination.
6 - The father filed excessively long cost submissions, in breach of my clear order. This resulted in additional costs to the mother, for which she should be compensated.
7 - Given the above, I award the mother $17,000 of costs (all inclusive), payable by the father forthwith.
Madam Justice Julie Audet
Released: August 31, 2023
(Amended on September 20, 2023)
COURT FILE NO.: FC-15-774-1
DATE: 2023/08/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ATALLAH DAHER SALAMEH Applicant
– and –
DANIA KHANAFER Respondent
Costs decision
Audet J.
Released: August 31, 2023