Court File and Parties
COURT FILE NO.: FC1068/22
DATE: December 19, 2023
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE:
Lubna Aldahleh, Applicant
AND:
Zakaria Abdelrahman Mohammad Zayed, Respondent
BEFORE:
SAH J.
COUNSEL:
Abeer Abosharia and Bayly Guslits, for the Respondent
Rasim (Sam) Misheal, for the Office of the Children’s Lawyer
Lubna Aldahleh, self-represented
HEARD: In Chambers, on written submissions filed
COSTS ENDORSEMENT
Overview
[1] This is my decision on costs with respect to a motion heard November 17, 2023, with reasons released on November 22, 2023.
[2] On the first day of trial, the applicant moved for an order that I be recused as trial judge. I granted leave for the motion to be heard as required in the trial scheduling endorsement form.
[3] The parties were provided time to file evidence in support of their motion. The motion was argued on the same day I rendered my oral decision, indicating I would release written reasons.
[4] The Office of the Children’s Lawyer (“OCL”) took no position on the recusal motion. The respondent opposed the motion, seeking its dismissal.
[5] The respondent was the successful party on the motion. I dismissed the applicant’s motion that I be recused as trial judge.
[6] The respondent seeks his costs on a substantial indemnity basis in the amount of $4,898.55, inclusive of disbursements and HST. He alleges total costs incurred relating to the recusal motion amount to $5,763.
[7] The applicant submits that she is an unemployed single mother and does not have any money to pay costs at all. She requests to be “exempt” from all costs.
Legal Principles
[8] The Court of Appeal has identified five fundamental purposes that modern costs rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[9] Subrule 24(1) of the Family Law Rules, O Reg 114/99 (“FLR”), creates a presumption that the successful party is entitled to costs.
[10] The exercise of judicial discretion in awarding costs is guided by subrule 24(12) of the FLR.
[11] The Court of Appeal clarified several aspects of costs rules, specifically that there is no provision in the FLR that provides for a general approach of fixing costs at “close to full recovery” and that “proportionality and reasonableness are the touchstone considerations” to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840.
[12] The FLR provides considerations in setting costs, including reasonableness and proportionality regarding the parties’ behaviour, time spent by each party, any written offers to settle, legal fees and other expenses paid.
[13] I have considered and applied the applicable caselaw and factors outlined in subrule 24(12) of the FLR.
Analysis
[14] The respondent was the successful party and is presumed to be entitled to costs.
[15] The respondent claims the applicant acted unreasonably and drove up costs of this litigations unnecessarily, causing significant delay at his emotional and financial expense.
[16] The respondent submits that it ought to have been plain and obvious to the applicant that she would not succeed on her motion for a recusal as she did not disclose any reasonable concerns.
[17] Further in support of his claim that the applicant acted unreasonably, he highlights that the applicant took no steps prior to the first day of trial to address the concerns raised in her recusal motion.
[18] Further, the respondent submits that the applicant has demonstrated unreasonable and ungovernable behaviour in these proceedings by violating an order not to remove the children from London and disregarding my direction at the trial management conference that she attend in person.
[19] The applicant’s behaviour as it relates to the removal of the children from London will not be considered in this costs endorsement. It was the subject of another motion and not a relevant consideration at this time.
[20] I agree with the respondent’s submission that the issues were moderately complex but disagree that they required several appearances. The parties were required to attend on the first day of trial, and although the issue raised by the applicant was a surprise to all, it only required one additional attendance, to provide time for the filing of material. The next appearance also addressed another motion brought by the OCL.
[21] The respondent did not file any material in response to the applicant’s motion. In contrast, the applicant filed a notice of motion and supporting affidavit.
[22] One of the respondent’s counsel was called to the bar in 2015 and has an hourly rate of $375 per hour. The respondent’s co-counsel was called to the bar in 2016 and has an hourly rate of $350 per hour. Though I consider the hourly rates to be on the “high side” given the years of call, they are not unreasonable.
[23] In support of costs, the respondent filed a bill of costs. The bill of costs outlined that one counsel spent 9.8 hours and the other spent 3 hours for the preparation and attendance of the motion, including a review of the applicant’s motion material, preparation of the respondent’s material including notice of motion, affidavits and exhibits, meetings and communication on the file with parties and other counsel, as well as court attendances on November 14, 17, 20, and 22, 2023.
[24] One hour of time is also sought for the preparation of costs submissions.
[25] A breakdown of dates, hours and work performed relative to time were not provided in the respondent’s bill of costs. This is unhelpful.
[26] As indicated above, the respondent did not prepare a notice of motion, affidavits or exhibits in relation to the recusal motion.
[27] For the purpose of the recusal motion, the parties only attended before the court on November 14 and 17, 2023, with November 14 being the first day of trial and a required attendance.
[28] Because a breakdown of hours spent on each day has not been provided, I am not able to determine if time spent is reasonable and relevant to the recusal motion only.
[29] No submissions were made with respect to offers to settle, though, given the issue before the court, attempting to settle would have been futile.
[30] In determining the appropriate amount of costs payable by the applicant, I have considered subrule 24(12)(b), which provides that the court shall consider any other relevant matter.
[31] I have considered the applicant’s submission that she cannot pay costs because her expenses exceed her income, and her claim that the respondent does not support the children. She provided no objective evidence to support her claims.
[32] I acknowledge that any costs award made by this court in favour of the respondent would impact the applicant’s, and thereby the children’s, financial situation.
[33] The respondent will not receive the benefit of a cost award that takes into consideration the full rate of both of his lawyers. There will be a substantial reduction to the amount of costs claimed by him due to deficiencies in his bill of costs.
[34] However, family law litigants must be responsible and accountable for the positions they take in litigation.
[35] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings: Balsmeier v Balsmeier, 2016 ONSC 3485; Winiarz v. Anderson, 2020 ONCJ 238.
[36] Costs need to be proportional to the issue, the outcome, and the amount in question.
[37] I find that a fair and reasonable quantum in the circumstances of this case is $600, inclusive of HST and disbursements, payable by the applicant to the respondent on or before February 29, 2024. An order shall so issue.
“Justice K. Sah”
The Honourable
Madam Justice K. Sah
Released: December 19, 2023