Ontario Superior Court of Justice

Court File No.: FC-23-248
Date: 2025/02/11

Between:
Amanda Larocque-Seegobin, Applicant
and
Mohammed Najib Al-Bakri, Respondent

Applicant Counsel: Valerie Akujobi
Respondent Counsel: Rod Vanier

Heard: Costs submissions in writing

Costs Endorsement
Justice Heather Williams

Overview

[1] The applicant, Amanda Larocque-Seegobin, seeks costs of a motion she brought for support and related relief.

Background

[2] The applicant brought a motion for child and spousal support. The applicant asked that an annual income of $100,000 be imputed to the respondent, Mohammed Najib Al-Bakri. The applicant sought an order that would prohibit the respondent from further participation in this proceeding, because he failed to comply with two disclosure orders. The applicant also sought information from a non-party, on whom she served her motion materials, but who did not participate in the hearing.

[3] I concluded that it would be appropriate to impute income to the respondent. I imputed an annual income of $100,000, as requested by the applicant. I ordered the respondent to pay child support of $397/month beginning May 1, 2023, as requested by the applicant. I ordered the parties to share “Section 7” expenses proportionate to the applicant’s income and the respondent’s imputed income. The applicant requested interim spousal support of $500/month. I ordered interim spousal support of $344/month, which, according to the DivorceMate calculations filed by the applicant, was “mid-range” support.

[4] I did not order that the respondent be prohibited from further participation in the proceeding; I said a costs order would be a more appropriate response to the respondent’s non-compliance with the two disclosure orders.

[5] I did not make a disclosure order against the third party; I was of the view that there was a more appropriate alternative procedure for obtaining the information the applicant sought.

The Parties’ Positions

[6] The applicant seeks full indemnity costs of $7,627.50, inclusive of HST. She also seeks $5,000 “as a consequence of failure to obey court orders.” The applicant argues her request for the $5,000 may be made under Rule 1(8) of the Family Law Rules, O. Reg 114/99, which provides that, where a person fails to obey an order, the court may make any order it considers necessary for a just determination of the matter, including an order for costs.

[7] The respondent argues he had some success on the motion but concedes that the applicant was the more successful party.

[8] The respondent argues that $5,000 all-inclusive would be an appropriate costs award.[^1] The respondent notes that this is roughly the mid-point between the applicant’s partial and substantial indemnity costs.

[9] The respondent opposes the applicant’s request for an additional costs award of $5,000. He argues that the applicant is attempting to obtain a remedy that was denied in the motion and that such a remedy should be granted only in the most egregious of cases.

[10] The respondent submits that the applicant only claimed spousal support at the eleventh hour, that she did not serve an offer to settle and that these factors should weigh against a significant costs award.

Costs in Family Law Cases Generally

[11] Costs awards in family law cases are intended to serve four fundamental purposes:

i. to partially indemnify successful litigants;
ii. to encourage settlement;
iii. to discourage and sanction inappropriate behaviour by litigants; and
iv. to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules. (Mattina v. Mattina, 2018 ONCA 867)

[12] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party.

[13] In exercising its discretion to order costs, the court is required to consider the factors set out in Rule 24(12) which are the following:

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 rule 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.

[14] Ontario's Court of Appeal has underscored the importance of the principles of reasonableness and proportionality in the court's exercise of discretion in respect of costs: (Beaver v. Hill, 2018 ONCA 840).

Analysis

[15] As conceded by the respondent, the applicant was the more successful party on the motion and is entitled to costs.

[16] I find the applicant’s request for full indemnity costs to be appropriate, in light of the respondent’s failure to comply with the two previous orders. The first of the two orders was made 15 months before the hearing of the motion; the respondent had ample time to comply. Although the respondent had disclosed some information before the hearing date, the outstanding disclosure was significant in terms of quantity and relevance and, as I noted in my decision, some of the financial information disclosed by the respondent raised more questions than it answered. I was also not persuaded that the respondent had made good faith efforts to provide the applicant with the information she required to ascertain his actual income. Further, although Swartz J. had specifically and clearly ordered the parties to file factums for the motion, the respondent failed to do so. In my decision, I accepted the respondent’s counsel’s explanation that the associate tasked with preparing the respondent’s factum left his law firm abruptly, and that it was then too late to prepare a factum in time for the filing deadline. The respondent’s counsel did not, however, explain why no effort was made to comply with Swartz J.’s order either by requesting the applicant’s counsel’s consent to file a factum after the deadline or by seeking leave to file in court.

[17] The applicant seeks $6,750 in full indemnity fees plus HST. The fees relate to time docketed from June 8, 2023 to July 31, 2024, relating exclusively to the motion. The applicant’s lawyer worked 27 hours at a rate of $250/hour. Although the costs requested by the applicant are more than twice the amount of the costs in the respondent’s bill of costs, I am satisfied that the time docketed by the applicant’s lawyer was justified. The respondent’s conduct forced the applicant’s lawyer to spend time to try to extract disclosure from the respondent, to piece together the incomplete disclosure that was produced and to prepare an argument for imputation of income which was ultimately successful. I note also that the respondent’s bill of costs: (a) was not encumbered by any time related to the preparation of a factum; and (b) was prepared after my decision was released and the respondent knew he had been unsuccessful. For these reasons, I find the applicant’s costs to be reasonable.

[18] I am not prepared to award the applicant the additional $5,000 she has requested. I have awarded the applicant costs on a full indemnity basis, in the amount she requested. Any amount in excess of this award would be a pure penalty which, in my view, cannot be characterized as an order for costs under Rule 1.08(a). I find support for this conclusion in the observation of Kraft J. in Monga v. Monga, 2024 ONSC 761, para 41, where at para. 41, she said that, in her view, an order for "costs" under Rule 1(8)(a) only permits an order in respect of the reimbursement of legal fees and disbursements.

[19] In all of the circumstances, considering all of the relevant factors, including the amount that was in issue, the complexity of the case and proportionality, I have concluded that it would be fair and reasonable for the respondent to pay the applicant, as she requested, full indemnity fees of $6,750 plus HST, for a total of $7,627.50.

Disposition

[20] The respondent shall pay the applicant $7,627.50, representing the applicant’s full indemnity costs, inclusive of HST.

Madam Justice Heather Williams
Released: February 11, 2025

[^1]: In his costs submissions, the respondent actually wrote “$50,000” and not “$5,000” but it was evident that this was an error and that he was proposing $5,000.