Court File and Parties

COURT FILE NO.: FS-22-113-00 DATE: 2023 05 10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMIN BARAKAT, Applicant - and - LUNA MOUNIR ANDRAOS, Respondent

BEFORE: TRIMBLE J.

COUNSEL: Ruth Kalmitsky for the Applicant Michael J. Stangarone for the Respondent

HEARD: In writing

Endorsement on costs

[1] This is costs endorsement further to my reasons for decision dated 23 January 2023.

The Positions of the Parties

[2] The applicant, Father, was successful on this motion for the return of the children and is entitled to his costs. He seeks $62,661.31, inclusive of fees disbursements and HST. This is on a full indemnity scale on the basis that the respondent Mother acted in bad faith in taking a couple’s two children to Lebanon and not returning to Canada. He alleges that Mother had a deliberate plan, before leaving Canada, to take the children and not come back.

[3] Mother argues that Father should not be entitled to his costs, but if he is, he is entitled costs of $10,000, all-inclusive.

The Law

[4] In determining costs in any family matter, this Court looks to Mattina v. Mattina, 2018 ONCA 867, Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rules 18 and 24 of the Family Law Rules.

[5] Family cost rules are designed to do three things: (1) to partially indemnify successful litigants; (2) to encourage settlement, and (3) to discourage and sanction inappropriate behaviour by litigants (see: Mattina, at para. 10; Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22).

[6] Family Law Rule 2(2) adds a fourth fundamental purpose of ensuring that cases are dealt with justly (see: FLR. 2(2); E.H. v. O.K., 2018 ONCJ 578 at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711 at para. 37). FLR 24(12)[1], sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

[7] FLR 24(1) creates a presumption of costs in favour of the successful party (see: Berta v. Berta, 2015 ONCA 918, at para. 94).

[8] Although a successful party may always be entitled to costs (see: M.(C.A.) v. M.(D.), at para. 40), an award of costs is subject to the factors listed in FLR 24(12), FLR 24(4) pertaining to unreasonable conduct of a successful party, LR 24(8) pertaining to bad faith, FLR 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party (see: Berta v. Berta, at para. 94).

[9] The Family Law Rules contemplate full recovery costs in specific extraordinary circumstances such as where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[10] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably, Rule 24(5) provides guidance on how to evaluate reasonableness, and Rule 24(8) discusses the cost consequences for a party who has acted in bad faith.

[11] The assessment of costs is not a mechanical exercise. The judge is not required to merely add up lawyer’s dockets (see: Boucher et al v. Public Accountants Council for the Province of Ontario; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe, 2010 ONSC 1044 (SCJ). The judge’s task 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 (see: Selznick v Selznick, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray (2005); Guertin v Guertin, 2015 ONSC 5498 (SCJ).

[12] With respect to the scale of costs, the Family Law Rules say that the Court must consider offers (18(14), as well as whether a party acts unreasonably (24(4), or in bad faith (24(8).

[13] Costs, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties” (see: Boucher, supra, at para. 24).

[14] What is bad faith?

[15] Most commonly, bad faith is characterized as conduct done with the intent to inflict financial or emotional harm on the other side, to conceal information relevant to the issues, to deceive the other party or the court, or actions designed to achieve a nefarious purpose. Conduct that is misguided but genuine, is not bad faith. (see: Negin v. Fryers, 2018 ONSC 6713, at para. 17; S.(C.) v. S.(C.), [2007] O.J. No. 2164).

[16] In Jackson v. Mayerle, 2016 ONSC 1556, at para. 58, Pazaratz, J. defined bad faith as “…the conscious doing of a wrong because of dishonest purpose or moral obliquity and involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle; Leonardo v. Meloche; [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).” It requires malice and intent to harm.

[17] The conduct amounting to bad faith is usually manipulating and falsifying evidence, intentionally failing to honour an agreement in order to achieve an ulterior purpose, or intentionally breaching a court order to achieve an ulterior purpose, but other conduct in the right circumstances may amount to bad faith, although it is a question of degree. Pazaratz, J. indicated (at para. 54 and 64) that a wide range of unreasonable behaviour may attract an award of full indemnity, such as:

a. unfounded allegations significantly complicate a case or lengthen the trial process, b. after an established parenting time arrangement, changing to a campaign to shut the other parent out of the child’s life, c. unilateral or dictatorial behaviour, d. using uncontrolled emotional behaviour and manipulation, oblivious to their effect on the child, e. making dubious or false allegations against the other parent without credible supporting evidence, f. surreptitiously recording the other parent, or children, or both.

[18] This list is not exhaustive.

Analysis

[19] I did not find that Mother created and executed a plan, before she left Canada, to take the children and not return from Lebanon, as Father urged me to do. I found, however, that once she was in Lebanon, Mother planned to not return to Canada notwithstanding that the children are ordinarily resident in Ontario, and the original intention in going to Lebanon was to take their regular holiday there to visit family. I find that she activated the Lebanese court proceedings without formal notice to Father. She obtained a travel ban for the children without notice to the Father. In other words, Mother forum shopped, and intentionally activated the Lebanese court process without notice to Father in order to gain advantage from so doing. This is bad faith (see: S.(C.) v. S.(M.), para 17).

[20] In cases such as this, the court needs to send a strong message to parents that resorting to self-help and wrongfully removing children from the habitual residence is unacceptable (see: Brown v Pulley, 2015 ONCJ 238, at para 24).

[21] Father should have his costs on a substantial indemnity basis.

[22] The quantum of Father’s claim for costs, however, is unreasonable. A couple of examples will suffice to illustrate the point:

a. Father’s lawyers had six people working on this file (not including the “foreign lawyer”). There is no justification for what appears to be over staffing the file for this motion; b. those working on the file who spent, collectively 127.55 hours working on this file. That is the equivalent of three people working full time, each for one full week. There is no justification for this extraordinary amount of work; c. Father claims as part of his claim for fees $14,625 for work done by “foreign counsel” because “Amin Barakat has had to retain counsel, Ibrahim Traboulsi, in Lebanon to defend the claims brought by Luna Andraos.” No detail is provided as to whether the work the Lebanese lawyer provided was solely for this file or for legal work in Lebanon.

[23] With respect to the Lebanese lawyer, he provided some evidence in the motion before me. Absent a detailed breakdown of his time, I am left to decide, arbitrarily, what of the $14,625 is related to this motion as opposed to any other aspect of the claim either in Ontario or Lebanon.

[24] The 127.55 hours of time spent on this file, on its face, is extreme. Absent a breakdown of what was done (aside from rolled up descriptions of each step), I am unable to assess in a specific way what time is reasonable.

[25] On the other side of the ledger, there were several attendances, and the motion was complex.

[26] A reasonable and proportionate sum that is fair for Mother to pay and Father to receive as indemnity for costs on a substantial indemnity basis is $25,000. Mother shall pay Father that sum by 4 pm, 6 April 2023.

Trimble J. Released: May 10, 2023