Ontario Superior Court of Justice

Court File No.: FC-20-1221
Date: 2025/07/18

Between

Maryana Chyher, Applicant
and
Amar Al Jaboury, Respondent

J. Allison Campbell for the Applicant
Valerie Akujobi for the Respondent
Chantal Carvallo for the OCL

Heard: In Writing

Decision on Costs
Justice T. Engelking

Background

A trial solely on the parenting issues between these two parties was heard in this matter January 16–31, 2024, and August 6, 2024. Reasons for Decision were released on February 13, 2025, in which the parties were invited to provide written submissions on the issue of costs for the trial if they were unable to agree on same. Both have provided written submissions, and this is my decision on costs for the trial.

Parties’ Positions

The Applicant’s position is that although the outcome of the trial was more consistent with that sought by the Respondent, she is entitled to costs of the trial on a full recovery basis due to the Respondent’s unreasonable, indeed, bad faith, behaviors. She seeks an order awarding her $103,000 in costs on a full recovery basis. In the alternative, she seeks an order for $92,000 on a substantial indemnity basis, or, in the further alternative, an order for $61,800 on a partial indemnity basis.

The Respondent’s position is that he was the more successful party at trial in that he was advocating for the children’s voices to be heard, which they ultimately were. His further position is that he litigated reasonably and, notwithstanding the finding made against him at trial, he did not act in bad faith. He also submits that he made an Offer to Settle dated April 7, 2022, which was more favorable to the Applicant than was the outcome of the trial and which the court must consider in any determination of costs. The Respondent also notes that he was responsible for costs associated with reunification therapy and the supervision of his parenting time for nearly two years. The Respondent seeks an order awarding him $113,700 in costs on a substantial indemnity basis.

Legal Framework

The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and (3) to discourage and sanction inappropriate behaviour by litigants.” (Mattina v. Mattina, 2018 ONCA 867, para 10)

Subrule 24(14) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. Rule 24(12) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.

Under the heading “Unreasonable behaviour by successful party”, Subrule 24(7) of the Family Law Rules provides:
“A successful party who has behaved unreasonably during a step in a case may be deprived of all or part of the party’s own costs or ordered to pay part of the unsuccessful party’s costs.”

Subrule 24(8) provides:

• In deciding whether a successful party has behaved unreasonably, the court may consider,
• the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
• the reasonableness of any offer the party made; and,
• any offer the party withdrew or did not accept.

Subrule 24(10) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

Analysis of Respondent’s Conduct

The Respondent’s unreasonable, indeed harmful, behaviour was noted several times throughout the decision, including:

• Paragraph 1 – This ought to have been a case of a simple separation of two adults whose relationship was no longer sustainable by July of 2020, which undoubtedly would have resulted in a shared parenting regime for two young men who love both of their parents; instead, and for no good reason, it became one of struggle, hatred, alienation, and protracted litigation.
• Paragraph 2 – For this [Mr. Al Jaboury’s loss of control over Ms. Chyher], both she and the children have paid a very hefty price.
• Paragraph 92 – Mr. Al Jaboury, however, has proven himself incapable of promoting the children’s relationship with their mother…
• Paragraph 93 – The problem in this case is Mr. Al Jaboury.
• Paragraph 95 – Nevertheless, Mr. Al Jaboury created a narrative which would serve to justify why Ms. Chyher left the marriage in July of 2020, one which squarely placed the blame for the demise of the relationship on her, especially in the eyes of her sons.
• Paragraph 102 – Notwithstanding that this was the case [that Ms. Chyher was the children’s primary parent throughout the marriage], Mr. Al Jaboury used the five months during which he had exclusive domain over the children, again with NO valid explanation or justification, to completely turn the boys against their mother.
• Paragraph 103 – It is unfathomable to think that a parent would do what Mr. Al Jaboury did to these kids.
• Paragraph 103 – Minimizing Mr. Al Jaboury’s access to and ability to negatively influence the children made all the difference in the world, and clearly evinced that it was he who was causing the difficulties and not the other way around.
• Paragraph 104 – There is no doubt that Mr. Al Jaboury, despite his protestations to the contrary, severely alienated the kids from Ms. Chyher.
• Paragraph 107 – Mr. Al Jaboury is a highly manipulative and controlling individual, whose needs come before all else. His particular need to punish Ms. Chyher for leaving the marriage has wreaked havoc on her and on the children.

I also found that Ms. Chyher was a victim of physical abuse, sexual impropriety, and coercive control at the hands of Mr. Al Jaboury for most of their relationship.

Pursuant to Subrule 24(8), I may consider the Respondent’s behaviour in relation to the issues from the time they arose. As is set out in paragraph 1 of my Reasons for Decision, a trial of this matter ought not to have been required; it was only the choices and actions of Mr. Al Jaboury which caused it to be so. As I indicated at paragraph 108 of the decision:

[108] Mr. Al Jaboury may consider that he is the successful party in relation to the outcome of the trial. He is not; rather, it is the views and preferences of [S.] and [A.], who are now 14 and 15 years of age respectively, which have ruled the day. Ironically, as I indicated at the outset of these reasons, this is a case in which a shared parenting regime could have, and should have, been in place from shortly after July 22, 2020. It is only due to the machinations of Mr. Al Jaboury that:
a) the boys completely unjustifiably did not see their mother for five months after separation;
b) the boys were subjected to a difficult, imposed and abrupt change to their primary residence in December of 2020; and
c) the boys were subjected to three years of supervised parenting time with their father and were deprived of the very thing they expressed wanting—more time with him.

The Respondent has acted unreasonably. Pursuant to Subrule 24(7), he may be deprived of his own costs or be required to contribute to those of the other party.

Offer to Settle and Bill of Costs

The Respondent did make an Offer to Settle to the Applicant on April 7, 2022. It is true that it was more favourable to the Applicant than was the outcome of the trial in relation to the Respondent’s parenting time. However, the offer was made at a time when the parenting assessor, Ms. Morinville, was recommending more limited supervised parenting time. Additionally, there is no indication in the offer that its provisions were severable, and it addressed all issues between the parties. I am unaware as to whether the Applicant could have agreed to the parenting provisions to the exclusion of the financial provisions. It is, therefore, difficult to accept the Respondent’s submission that he is presumptively entitled to an order for costs for the trial on parenting issues. Even on some of the parenting issues, such as decision-making authority, the outcome of the trial was more favourable to the Applicant than was the Respondent’s offer.

The Respondent has also identified in his submission certain items in the Applicant counsel’s bill of costs which pertain to events for which costs were already ordered, specifically the urgent motion in December of 2020, as well as entries dealing with financial or other issues. He has identified approximately 85 hours of counsel’s time which are not dedicated to parenting issues. However, some of the identified entries are mixed, with some time being dedicated to parenting issues and some to financial issues. Additionally, there are entries post the conclusion of trial on August 2, 2024, which will not be included for the purposes of an award of costs.

I am prepared to reduce the 229 hours billed by Ms. Campbell by 65 hours, for a total of 164 hours. This would result in fees to her of $61,500 at her regular hourly rate of $375. Total fees including the time of her junior counsel and/or clerks amounts to $88,682, partial indemnity for which is $53,209.

Taking into account HST and disbursements, which are not included in the fees as outlined above, I find that it is reasonable and just that the Respondent pay to the Applicant $60,000 in costs for the trial.

Order

There shall be a final order as follows:

1. The Respondent shall pay to the Applicant costs of $60,000 for the trial, inclusive of HST and disbursements.

Justice T. Engelking
Released: July 18, 2025