Court File and Parties

Court File No.: FC-21-206 Date: 2025-11-06 Ontario Superior Court of Justice

Between: Ashwaq Abdul Ridah, Applicant – and – Mohamed Kandil, Respondent

Before: Justice Marc R. Labrosse

Counsel:

• Paul Riley, for the Applicant
• Self-represented, for the Respondent

Heard: In writing.

Costs Endorsement

Overview

[1] This Costs Endorsement follows an 8-day trial which took place between January 24, 2025, and June 28, 2024. The Court's Reasons for Decision can be found at 2024 ONSC 5089 and were released on September 13, 2024. Following the release of the trial decision, the court met with the parties on four further dates to deal with post-trial adjustments and to receive information from the respondent on his health and his ability to have parenting time with the children. At the end of this process, the Respondent's circumstances were still uncertain. A Final Order was arrived at on March 28, 2025, that provided the respondent with minimal parenting time as a result of his unstable personal circumstances and dealt with the further issues arising from the trial.

[2] In terms of success, there is no doubt that the Applicant was successful on the most important issues. This was a trial focussed on the Respondent's ability to parent. The Children's Aid Society was involved at times. The most important issues were parenting, decision-making, child support arrears along with the Respondent's ability to have the children in his care. The Applicant was completely successful on these most important issues along with the date of separation. However, the Applicant was not successful in imputing income to the Respondent, and she was not successful on the equalization payment that she claimed was owed to her. When measuring the overall measure of success, this was a case that focussed on parenting and the Respondent's ability to properly care for the children and the Applicant was clearly the more successful party.

[3] The Applicant's Bill of Costs claims full indemnity costs of $63,738.50. That amount is based on the Applicant's counsel whose time represents $35,475 based on 64.5 hours worked at an hourly rate of $550.00 per hour. The balance of $28,263.50 is made of time for a student-at-law and a law clerk based on approximately 105 hours worked at an hourly rate of roughly $265.00 for each of them.

[4] In addition, the Applicant seeks costs/damages in the amount of $91,754.43 to address psychological and emotional distress caused by the Respondent. In the alternative, the Applicant seeks that amount in the form of a damages award for the tort of family violence, as recently established in the case of Ahluwalia v. Ahluwalia, 2022 ONSC 2169. Strangely, the Applicant makes no reference to the Court of Appeal's decision when it did not recognize the tort of family violence in Ahluwalia v. Ahluwalia, 2023 ONCA 476. The Applicant does not reference that this matter is also before the Supreme Court of Canada.

[5] In support of her argument for full indemnity costs, the Applicant alleges that the Respondent was engaged in bad faith conduct throughout the trial and that his conduct unnecessarily increased the Applicant's legal cost by substantially complicating the issues and the evidence.

[6] The Respondent states that he is entitled to an award of costs in the amount $25,000 plus interest as a result of the Applicant's bad faith conduct, unreasonable positions and delayed disclosure. The Respondent also claims damages for family violence in the amount of $80,000.

[7] Having concluded that the Applicant was more successful than the Respondent in the result, she is entitled to her costs. The measure of her success is somewhat tempered by the Respondent's success on the imputed income and on equalization. Accordingly, what remains is the appropriate scale of costs and the ultimate amount that the Respondent should pay.

Applicable Law on Costs

[8] 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 that cases are dealt with justly under r. 2(2) of the Family Law Rules, O. Reg. 114/99 (the "FLRs"): see Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625.

[9] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: see Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.

[10] An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) of the FLRs, pertaining to unreasonable conduct of a successful party, r. 24(8) of the FLRs, pertaining to bad faith, r. 18(14) of the FLRs pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: see Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94.

[11] Although rule 24(1) of the Family Law Rules, O. Reg. 114/99 ("the Rules") establishes that success is the starting point in determining costs, rule 24(4) states that a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs. Rule 24(5) provides that reasonableness is decided in consideration of a party's behaviour in relation to the issues, whether an offer to settle was made, the reasonableness of any offer, and offers withdrawn or failed to be accepted.

[12] The principles applicable to the determination of costs in family law cases were very helpfully summarized by Justice Leach in Baker v. Baker, 2023 ONSC 4860, at para. 10. Although I see no need to repeat these principles here, I have carefully reviewed and considered them in arriving at my decision.

Analysis

[13] The Court has considered Rules 18 and 24 together with the parties' respective written submissions. Both parties made offers to settle but neither party had a result that was better than their offer in order to trigger the cost consequences of Rule 18. While the Applicant was more successful in her offers to settle in respect of parenting and decision-making, she did not better her offer in terms of imputed income and equalization. Accordingly, rule 18 does not apply. However, the offers remain relevant under the rule 24 costs analysis.

Damages for Family Violence

[14] I make a brief comment about each party's approach in these cost submissions to not only claim legal costs but then to increase the amount sought to obtain general damages arising from the tort of family violence. Firstly, the law is unsettled in this area and the most recent decision by the Court of Appeal for Ontario does not recognize this tort. Neither party brought this to the attention of the court. No party raised such damages as part of their argument at trial and neither party pleaded that relief in their respective pleadings. It is totally inappropriate to have brought up the issue of damages for family violence in the context of costs submissions when it was not one of the issues to be decided at trial. Accordingly, I refuse to deal with this issue on a substantive basis and simply confirm that neither party is entitled to any damages for family violence arising from this case.

Successful Party

[15] The Family Law Rules provide that the successful party is presumptively entitled to costs. As previously stated, the Applicant was clearly the successful party, but it was not success on all issues.

Complexity of Issues

[16] This was not complex family litigation. The issues surrounding parenting, decision-making, child support and equalization are not complex and are frequently dealt with by the courts. Complexity in this case came from the conduct of the Respondent and his personal circumstances which were always in transition. He claimed to want to have the children in his care, sometimes with sole decision-making and sometimes with shared decision-making and suggested that he could accommodate the children in a residence that he had rented. This ultimately appeared to have been false information provided to the court. He would never allow the Applicant to visit the location where he was proposing that his parenting time would take place. At one point during the trial, he advised the court that he was homeless and that he was living in a friend's vehicle.

[17] The matter also became complicated following the trial as the father's health deteriorated but the hospital records he provided were not clear as to the diagnosis. He attended court on one occasion from the emergency room at a hospital and the circumstances surrounding his health were challenging to understand. This also added complexity and further costs to the trial.

[18] Overall, the respondent's conduct and his personal circumstances added significant complexity and duration to the trial because it was difficult for the court to understand in what capacity the respondent was able to parent the children. In the end the court was only able to arrive at a final order as a result of concessions made by the Applicant which were clearly to bring this matter to an end.

The Reasonableness or Unreasonableness of Each Party's Behaviour

[19] The Respondent's approach to the litigation has been unreasonable and added to the cost of this proceeding. He was not properly equipped to participate in the trial and did a number of document dumps of information that made it very difficult to find information and organize the information under proper exhibits.

[20] He took unreasonable positions in his request for sole decision-making which was unrealistic given his historical relationship with the children. He had always been an access parent, and he should have recognized this. He was unreasonable in his attempt to have the date of separation go back to 2013. There was no realistic chance of success in this position, but he continued to advance that position at trial despite the fact that there was no proper financial evidence to support such a date of separation.

[21] He was also unreasonable when dealing with the proceeds of the sale of the property for 37 Lucien Brault and his entitlement to those funds when he lost the action against the Applicant's brother in the Quebec Superior Court, lost the appeal and then has continued to maintain that the Applicant and her brother somehow acted inappropriately. This has continued to add further costs to this litigation.

[22] Finally, the Respondent was unreasonable in his approach to child support. He was of the view that he was unable to actively look for work and become employed because he was too busy dealing with all the litigation involved in his life. There is no basis in law for such a contention and the suggestion that his obligation to support his children is superseded by all the litigation he is involved in is unreasonable.

[23] In the end, the Respondent's unreasonable conduct and unreasonable positions taken at trial caused the need for an 8-day trial in which the Respondent was in large part unsuccessful on the major issues.

[24] As for the Respondent's allegations that the Applicant acted unreasonably, I do not agree. I am of the view that the Applicant did the best she could to present a case that should have been resolved a long time ago. While she was not successful on all the points she advanced, the Applicant's contention about unreasonable conduct is not made out.

Lawyers' Rates

[25] I find that the hourly rate the Applicant's counsel and his employees for whom he seeks reimbursement is not in keeping with the hourly rates for counsel who regularly work in family law in the Ottawa area. Counsel for the Applicant is from Toronto and the hourly rates are out of touch with the Ottawa family law legal community. This is particularly the case for the student-at-law and the law clerk whose time is billed out at $265.00 per hour. I have never seen such hourly rates in the Ottawa area.

[26] The hourly rates claimed by the Applicant are excessive when considering the regular hourly rates applicable to the Ottawa area. In coming to this conclusion, I adopt the reasoning of the court in Kaufman LLP v. Kechchian et al., 2021 ONSC 4160 and Brahma v. HR Services, 2022 ONSC 2645. Accordingly, a downward adjustment must be made to the Applicant's claim for costs.

Time Spent

[27] When considering time spent, the time spent by the applicant's lawyer is reasonable and that his approach to billing during the trial by charging a block fee for six hours per day of trial time was reasonable. When looking at the time spent by the student at law, it is high, but it appeared that the student provided actual value and support to the lawyer at trial, and I attribute a value to her role. There are 85 hours of time claimed for the student and 64 hours for the lawyer. I appreciate that the time spent by the student saved time for the lawyer. Overall, the total time spent is not unreasonable in the context of an 8-day trial.

Proportionality

[28] On the issue of proportionality, my issue remains with the hourly rates. It is open to a party to seek to retain counsel from Toronto but in doing so, she must be prepared to accept that the hourly rates charged in Ottawa are not the same as the hourly rates charged in Toronto. Accordingly, the costs that she claims are not proportionate to the costs that would otherwise apply in Ottawa. The Applicant must expect a reduction to those costs.

Conclusion

[29] The assessment of costs is not a mechanical issue (see: Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (C.A.), at para. 26). As stated by the Court in Delellis v. Delellis and Delellis, at para. 9: "The overall objective 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."

[30] Here, the full indemnity costs are claimed $63,738 plus tax. The Applicant claims $35,475 for the lawyer and $28,263 for the law clerk and student-at-law. I believe that a fair hourly rate for the Applicant's counsel should be $400.00 per hour. An adjustment must also be made for the hourly rate charged for the student-at-law and the law clerk and that their rates should be reduced by 40%. This leaves the lawyer's fees at $25,800 and $16,957 for the clerk and student. The full indemnity costs to be considered should be $42,757 plus tax. The corresponding partial indemnity amount would be $25,654.

[31] I have already indicated that the applicant did not better all of the elements of her offers to settle and that the provisions of rule 18 do not apply. At the same time, I have concluded that the respondent is responsible for unreasonable behaviour in the manner in which he conducted himself during the trial, the positions he took and the impact that his unstable personal circumstances had on the trial. Accordingly, an upwards adjustment is required from the partial indemnity rate to account for the respondent's unreasonable conduct.

[32] In the end, I determine that a fair and reasonable amount of costs to be paid by the Respondent to the Applicant should be somewhere between the partial indemnity rate and the substantial indemnity rate. Costs are fixed at $32,000 plus HST payable by the Respondent to the Applicant in 30 days.

[33] In the event that the parties need assistance in dealing with the release of funds held in trust, they may write to me.

Justice Marc R. Labrosse

Released: November 6, 2025