Court File and Parties

Barrie Court File No.: FC-22-138-00 Date: 2024-01-10 Superior Court of Justice – Ontario – Family Court

Re: Shafiqullah Zadran, Applicant -and- Rita Zadran, Respondent

Before: The Honourable Madam Justice S.E. Healey

Counsel: Omar Khan, Counsel, for the Applicant Katelyn Andersen, Counsel, for the Respondent

Heard: In Writing

Costs Endorsement

Background

[1] This is the decision on costs following the motion and cross motion heard on November 16, 2023.

[2] The applicant sought a temporary order for spousal support in the amount of $1,174 per month commencing April 1, 2023. Support was ordered in the amount of $1,118 to commence April 1, 2023.

[3] The respondent sought a temporary order for child support in the amount of $533 per month and for the applicant to pay 40% of s. 7 expenses on an ongoing basis. The applicant's share of s. 7 expenses was found to be 21%, and the cost of only one out of four items were ordered to be shared at this time, as the balance had inadequate evidentiary support. Child support was ordered to be paid in the amount of $482 monthly commencing April 1, 2023.

[4] The difference between the child and spousal support awards is $636, to be paid by the respondent.

[5] The respondent has never offered to pay any spousal support to the applicant, even though she has historically been the higher income earner and his need is obvious and pressing, made more so by the fact that he was injured in a motor vehicle accident during the marriage and is receiving income replacement benefits. Further, he has been left to make monthly payments on debt from the marriage, which he says was incurred to renovate the basement, and she has remained in control of the matrimonial home that has income earning potential from the refurbished basement apartment. It is against this backdrop that entitlement to costs must be considered.

[6] It was because spousal support was ordered by this court that the resulting child support order was higher than it would have been had no spousal support order been made. Consequently, to consider that an offer of table child support was more favorable than that ordered by this court is misleading. The child and spousal support awards must be looked at in tandem.

[7] Accordingly, none of the respondent’s offers can be seen as more favorable to the respondent than the order made, as none offered any payment of spousal support.

[8] The applicant served three offers, the first two only one day apart. Acceptance of the second part of the second offer dated March 29, 2023 would have resulted in the respondent paying a net amount of $622, less than that ordered.

[9] That offer was replaced by the applicant’s offer of August 18, 2023, which remained open at the time of argument of the motion. Acceptance of that offer by the respondent would have resulted in her paying a net amount of $587, again less than that ordered. Additionally, the applicant offered to pay 25% of special and extraordinary expenses, whereas this court found that his liability was limited to only 21%.

[10] The respondent’s lawyer notes that none of the offers were signed by the applicant, but rather by his lawyer, and so the requirements of rule 18(4) of the Family Law Rules have not been met. While this is accurate, rule 18(6) allows the court to take into account any written offer to settle even if rule 18(4) does not apply, even if not signed personally by a party: Blackstock v. Comeau, 2018 ONSC 1098 (Ont. S.C.J.), Browne v. Cerasa, 2018 ONSC 2242 (Ont. S.C.J.).

[11] The need for this motion was created by the respondent’s insistence that she would not pay spousal support. Her evidence on the motion was that the applicant was deliberately underemployed, and characterized him as wanting a “parasitic lifestyle”. The evidence showed that this was far from the truth, as he worked long hours holding two jobs at once for many years after immigrating to Canada. Acceptance of the applicant’s second, reasonable offer as long ago as March 2023 would have achieved early resolution of these issues and ultimately have been more favorable to the respondent than the results of the motion.

[12] The applicant was the successful party on this motion and is entitled to his costs. While I agree that his offers do not strictly conform with rule 18(4) and so do not automatically trigger the costs consequences, they were unreasonably rejected by the respondent without a counter-offer that properly acknowledged her liability for spousal support. Her approach has been unreasonable.

[13] The applicant seeks costs on a full recovery basis in the amount of $21,363.05.

[14] A review of Mr. Khan’s Bill of Costs reveals that it also references work that was done for a parenting motion that was argued in August 2023. It captures preparation of affidavits that were not used on this motion, time spent on Requests to Admit, which were not referenced during this motion, time associated with a report from the supervised access centre, review of CAS records and communications with the OCL. Accordingly, I am unable to use the Bill of Costs as a reliable document, as I am unable to determine what costs were incurred strictly for the motion returnable before me.

[15] For the hearing before me, the affidavit material was relatively brief and the issues straightforward. The amount requested by Mr. Khan is out of proportion to the issues, the recovery for his client, and the reasonable expectations of the respondent.

[16] The respondent’s lawyer urges the court to take into account the effect that any cost order will have on the children, who are in the respondent’s primary care. Respectfully, this was one of the potential repercussions that the respondent should have borne in mind when she had the opportunity to consider the applicant’s offers.

[17] I order that the respondent pay costs of this motion to the applicant fixed in the amount of $7,500 inclusive of HST and payable within 30 days.

Healey J. Released: January 10, 2024