Court File and Parties

COURT FILE NO.: FC-23-1650 DATE: 2024/07/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hala Alnajm, Applicant AND: Yassar Khoury, Respondent

BEFORE: Somji J.

COUNSEL: Lydia Potter, for the Applicant Respondent, Self-Represented

HEARD: In Writing

Costs Endorsement

1The purpose of a settlement conference includes among other things exploring the chances of settling a case, resolving or narrowing issues in dispute, and ensuring disclosure of the relevant evidence: r. 17(5) Family Law Rules (“FLR”). On June 5, 2024, I found that the father’s lack of preparedness resulted in the parties being unable to have a meaningful settlement conference and ordered that the Applicant mother was entitled to costs thrown away. Both parties had an opportunity to provide a costs submission: Endorsement Somji J June 5, 2024.

2The mother seeks full recovery for costs thrown away in the amount of $5,350.55.

3The father was previously represented by counsel but was self-represented at the settlement conference. The father indicated he was in the process of retaining new counsel.

4The mother served the father her bill of costs and submission on June 14, 2024. The father was provided 10 days to file a Reply and failed to do so. Instead, the father forwarded several emails to my judicial assistant suggesting he did not understand what was being requested of him. The father was directed to speak to the Family Law Information Center (FLIC) both on June 7, 2024, and again on July 2, 2024, with respect to any questions relating to these proceedings including costs.

5To date, the court had not received a Reply costs submission from the father. There is no indication that new counsel has been retained.

6Given my earlier finding that the mother is entitled to costs thrown away, the only issue to be decided is what is a fair and reasonable award for costs for this step in the proceeding.

Issue: What is a fair and reasonable award for costs thrown away?

7Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

8In determining costs, the court must consider 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, as per r. 2(2), that cases are dealt with justly: Mattina v Mattina, 2018 ONCA 867 at para 10.

9Costs may be awarded for a party’s failure to attend or be adequately prepared for a step in a legal proceeding: rr 17(18) and 24(7) FLR.

[10] Subrule 17(18) FLR states: Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10), a) order the party to pay the costs of the conference immediately; b) decide the amount of the costs; and c) give any directions that are needed.

[11] Subrule 24 (7) of the FLR states: If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

12A settlement conference was scheduled in this matter for June 5, 2024, to address the issues of: disclosure; parenting and decision-making; equalization of net family property; date of separation; as well as child and spousal support. The settlement conference was scheduled while the father was legally represented. While the father became self-represented on April 15, 2024, he did not communicate with opposing counsel until six weeks later on May 28, 2024, and at that time, requested an adjournment of the conference. Given the mother’s challenges in advancing this matter, opposing counsel refused the adjournment.

13For reasons set out in my endorsement, I found that the father was inadequately prepared and consequently, it was not possible to have a meaningful settlement conference. I therefore ordered that the mother would be entitled to costs thrown away.

[14] Rule 24(12) of the Family Law Rules requires a judge to consider the following in determining quantum of costs: (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: i. each party’s behaviour, ii. the time spent by each party, iii. any written offers to settle, including offers that do not meet the requirements of r. 18, iv. any legal fees, including the number of lawyers and their rates, v. any expert witness fees, including the number of experts and their rates, vi. any other expenses properly paid or payable; and (b) any other relevant matter.

15Below, I address the factors that are relevant to the determination of costs thrown away for the settlement conference.

Conduct of the parties

16The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable. Unreasonable conduct includes conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840.

17However, if a party’s conduct constitutes bad faith, the court may order costs on a full recovery basis as per r. 24(8).

18There is a difference between bad faith and unreasonable conduct. Bad faith is a high threshold. It is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: see: Scipione v Scipione, 2015 ONSC 5982, at para. 96.

19I find the father engaged in unreasonable behaviour warranting an elevated costs award.

20First, the father stated to counsel that his former counsel scheduled the settlement conference hearing without his knowledge implying that he was not necessarily aware of the conference date and therefore, needed an adjournment to August 15, 2024. Opposing counsel refers to this conversation with him in her Confirmation of Conference form.

21However, the father’s former counsel Ms. Mookerjea provided opposing counsel an email indicating that she informed the father by email on April 13 and again on April 15, 2024, to advise him of the settlement conference date and he responded to her on April 16, 2024. It is clear that the father had full knowledge of the settlement conference date as early as mid-April and his representations to counsel to justify a further adjournment were misleading.

22Second, the father failed to file a Settlement Conference brief and has failed to provide financial disclosure ordered and requested of him. This, along with his lack of preparedness thwarted the parties’ ability to have a meaningful settlement conference. For example, the father has not fully complied with Justice Blishen’s disclosure order of January 26, 2024, or the mother’s further request for information dated May 1, 2024. The father failed to provide exhibits supporting his initial Financial Statement or an updated Financial Statement. The father also now suggests that his 2021 and 2022 income tax returns are inaccurate and may need to be refiled.

23This matter is financially complex and involves assets in both Canada and Syria. Without adequate financial disclosure or at minimum, clear responses regarding the availability of certain financial disclosure, the parties are unable to make meaningful progress on issues of equalization, imputation of income, and retroactive and on-going child or spousal support.

24Third, the father was ill-prepared to address parenting issues at the settlement conference. The parties have three children who reside primarily with the mother in the matrimonial home. The mother made an offer to settle on March 26, 2024, to the father’s former lawyer after the parties received a Voice of the Child Report from the Office of the Children’s Lawyer. Counsel followed up again on April 15, 2024, but has received no response to the offer. The parties remain without even a temporary Parenting Order.

25Fourth, the father agreed to a temporary, without prejudice, child support order, during the settlement conference based on his present part-time income at a pharmacy. The mother only learned that the father held such a job approximately a week before the settlement conference at which time he forwarded counsel a single pay stub from his employer. The father is now unwilling to sign a draft Consent Order honouring his agreement requiring the mother to potentially bring a motion for child support.

26The father suggested at the settlement conference and continues to suggest that he does not comprehend these proceedings and is reluctant to make decisions that might compromise his rights. The father was previously represented and had close to two months to find new counsel for the settlement conference. Furthermore, the father is an educated engineer and has held high ranking positions in the UAE. He has sued his former employer and his own father is a lawyer. I do not accept the father’s claims that he is unable to comprehend the proceedings. I find he is capable of representing himself and was in a position to have a meaningful conference.

Complexity

27I find the issues scheduled for the conference, including parenting, are important. As already noted, the property issues are complex and cannot be resolved without the father making proper financial disclosure and engaging in meaningful discussions.

Work performed and rates

28The mother’s counsel provided a Bill of Costs for preparation and attendance at the settlement conference as well as follow-up work in preparing a draft consent order and costs submissions. The mother’s billings are properly restricted to the period of May 23 to June 11, 2024 and demonstrate that 19.6 hours were completed with one hour of work performed by a legal assistant. The mother’s counsel provided well-prepared and thorough materials both for the settlement conference and costs submission. Upon review of the detailed Bill of Costs, I find the total hours spent is reasonable and commensurate with the work performed.

29The mother’s counsel is a five year call and charges a reasonable rate of $250/hour. The total cost of the legal fees was $4,735 plus H.S.T. of $615.55 which I find to be reasonable given the number and complexity of issues involved.

Ability to pay

30Finally, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371, at para. 11; M.(A.C.) v M (D.) (2003), 67 O.R. (3d) 181 (C.A.), at para. 45.

31The father has not provided evidence that he is impecunious. He is presently employed and has assets including funds in a TD investment account that as of the valuation date would be more than sufficient to pay a costs award.

Conclusion

32Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v Hill, 2018 ONCA 840.

33The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 26.

34Having considered the father’s unreasonable conduct, the complexity of the matter, the reasonableness of the mother’s legal billings, and the father’s ability to pay, I find that an elevated costs award in the fixed amount of $4,500 is fair and reasonable in this case.

Order

35I therefore order that a costs award in the amount of $4500 is to be paid by the Respondent to the Applicant within 15 days.

Somji J.