MENA ACHAKZAD Applicant — v. —, 2011 ONCJ 721

Toronto registry DFO 09 10073 B2 DATE: 2011·XI·14 CITATION Achakzad v. Zemaryalai , 2011 ONCJ 721 ONTARIO COURT OF JUSTICE BETWEEN: MENA ACHAKZAD Applicant — AND — OMEDULLAH ZEMARYALAI Respondent Before Justice Ellen B. Murray Costs decision released on 14 November 2011 Ms. Reide Kaiser .................................................................................................... for the applicant Mr. Philip J. Traversy ......................................................................................... for the respondent [ 1 ] JUSTICE E.R.

MURRAY:— This case involved a request pursuant to the Hague Convention by the Respondent father that his daughter Machell bet returned to California. I denied that request. My decision was based on a finding that the Respondent’s violence towards the Applicant created, in the words of the Convention, “a grave risk that ( the child’s return) would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. [ 2 ] The Applicant mother now asks for an order requiring the Respondent to pay the costs of that hearing in an amount of $128, 931.25.

That amount represents full recovery. The Respondent submits that there should be no costs. [ 3 ] The hearing was lengthy, totalling 9½ days. The Applicant was successful on the only issue in the case—whether the child should be returned to California. No offers to settle were exchanged. Each party was represented by two counsel. Each party was legally-aided. History of this case [ 4 ] The hearing before me was the second Hague return hearing. At the first hearing, each party was represented by privately-retained counsel.

The Applicant was successful at that hearing, and the Respondent was ordered to pay $42,906 in costs. [ 5 ] The Respondent appealed the substantive decision, but not the order for costs. He was successful on appeal, and a new trial was ordered. The costs of that appeal have not yet been dealt with. The Applicant assigned her right to costs from the first hearing to her former solicitor, who initially pursued enforcement against the Respondent in California. That enforcement action was abandoned, without prejudice to the right to launch a new proceeding.

The Respondent has not made any payments towards the first costs order. [ 6 ] I urged the parties to explore settlement of the issues of the costs of the hearing before me and of the appeal. After prolonged efforts, including a conference with another judge, they advised that they were unable to settle these issues. [ 7 ] After written argument about costs had been submitted, the Respondent discharged his solicitor. To date, he has not retained new counsel. Statutory framework [ 8 ] Section 131(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43, as amended, provides: Subject to the provisions of

an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. [ 9 ] The wide discretion granted by section 131 (1) is structured and circumscribed by Rules 18 and 24 of the Family Law Rules. Rule 18 deals with the cost consequences of offers to settle. As there were no such offers in this case, I refer only to the relevant portions of Rule 24:

• 24. Successful party presumed entitled to costs.-- ( 1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. • ... •

(4) Successful party who has behaved unreasonably.-- Despite subrule (1), 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. •

(5) Decision on reasonableness.-- In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, • (

a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; • (

b) the reasonableness of any offer the party made; and • (

c) any offer the party withdrew or failed to accept. •

(6) Divided success.-- If success in a step in a case is divided, the court may apportion costs as appropriate. • ... •

(8) Bad faith.-- 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. • ... •

(10) Costs to be decided at each step.-- Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a

summary manner who, if anyone, is entitled to costs, and set the amount of costs. •

(11) Factors in costs.-- A person setting the amount of costs shall consider, • (

a) the importance, complexity or difficulty of the issues; • (

b) the reasonableness or unreasonableness of each party's behaviour in the case; • (

c) the lawyer's rates; • (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; • (

e) expenses properly paid or payable; and • (

f) any other relevant matter. Positions of the parties [ 10 ] The Applicant submits that costs should be awarded on a full recovery basis, because she was entirely successful on the only issue in the case, and because the Respondent acted in bad faith. [ 11 ] The Respondent submits that no costs should be awarded. In making this submission, the Respondent does not argue that the Applicant should be deprived of costs because her litigation behaviour was unreasonable.

Rather, he points out that the Applicant conceded that her removal of the child was “wrongful” under the Convention, and submits that he should not be penalized for invoking the Convention to seek the return of his daughter to California. He argues that his perjured testimony at trial does not automatically equate with a finding of “bad faith”. He also submits that an award of costs would impair his opportunity to maintain a relationship with his daughter. Did the Respondent act in bad faith?

[12] “Bad faith” is not defined in the Rules. It is clear that ‘bad faith” is something more than unreasonable litigationbehaviour. Justice Craig Perkins in C.S. v. M.S., (2007) (ON SC), O.J. 2164 considered the question of whatconduct constitutes bad faith. He held that: “In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflictfinancial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues,or to deceive the other party or the court.

A misguided but genuine intent to achieve the ostensible goal of the activity, without proof ofintent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith.

The requisiteintent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person'sintent.” [13] In my decision after trial, I made the following finding with respect to the Respondent’s evidence on the issue of whetherhe was violent or threatened violence to the Applicant : “The respondent gave false evidence, under oath, to this court on the central issue in this proceeding, knowing it was false, with anintention to mislead.

He perjured himself and corralled his family to assist him. “ [14] The Respondent’s counsel argues that, despite this finding, I should not find that the Respondent acted in bad faithbecause he believed in the rightness of his cause, the return of his daughter to California. He cites Ladesic Hartmann v. Hartmann, 2008 CarswellOnt 5308, a case in which Justice Harrison Arrell found that a mother had made careless, unsupported allegations of childabuse against a father.

Justice Arrel found that the mother believed the allegations, and believed that she was acting in the child’s bestinterests, and for that reason, declined to make a finding of bad faith. [15] An honest belief by a litigant in the rightness of his cause may excuse some types of misguided conduct, but it does notexcuse perjury. Perjury strikes at the heart of the justice system. I find that the Respondent acted in bad faith in offering his perjuredtestimony.

Bad faith and costs [16] Respondent’s counsel argues --despite a finding of bad faith and the terms of subrule 24(8) -- that the court hasdiscretion to award no costs, or costs at a level below that of full recovery. He cites rulings from the Ontario Court of Appeal in Murrayv. Murray, (ON CA), 205 O.A.C. 107, and M.(C.A.) v.

M.(D.), (ON CA), 2003 CarswellOnt3606, in which the court considered claims for costs pursuant to subrules 24(1) and 18(14).The court held that a judge determining costscould take the financial situation of the parties into consideration and deny costs even to a successful litigant who had bested his offer. InM.(C.A.) v. M. (D.) the court specifically held that subrule 24(11)(f), which directs that a court shall in setting an amount of costs takeinto consideration “any other relevant matte r”, allowed consideration of this factor. [17] Justice Perkins considered this issue in C.S. v.

M.S., cited above: “What impact do the factors and the discretion in subrule 24(11) have on the full recovery mandated by subrule 24(8)?

My tentativeconclusion is that full recovery costs should be awarded in relation to the issues affected by the bad faith and then the whole pictureshould be looked at again in light of the considerations in subrule 24(11) and the discretion in that provision should be used as necessaryto produce the correct overall result.”[1] [18] I agree, of course, that the factors set out at subrule 24(11) that refer to the conduct of the case should be taken into account inarriving at a proper amount for full recovery costs. However, with great respect, I am unable to agree that in cases of bad faith thatsubrule 24(11)(

f) may be employed to reduce what would otherwise be a full recovery award because of the parties’ financial situation.The decisions in Murray v. Murray and in M.(C.A.) v. M.(D.) rest on a consideration of subrules 24(1) and 18(14), which containpresumptive rules about costs.

The provision of subrule 24(8) is mandatory as to costs: “If a party has acted in bad faith, the court shalldecide costs on a full recovery basis and shall order the party to pay them immediately.” Section 131(1) of the Courts of Justice Actprovides that the discretion given a court in determining costs is limited by a rule of court; subrule 24(8) is such a rule. [19] For these reasons, I find that I am not able based on a consideration of the parties’ financial situation to eliminate or reducewhat would otherwise be a proper award of full recovery costs.

If I am in error, and do have authority to do so, than I would not changethe amount of a full recovery award for reasons I set out below, in my discussion of 24(11) factors. [20] I turn next to the question of whether an order for full recovery costs should be made for the entire hearing, or just a partof the hearing. Given the Applicant’s concession that her removal of the child from California was “wrongful”, as defined by theConvention, the central issue of fact in the hearing was whether the Respondent had been violent or had threatened violence to theApplicant.

The Respondent’s bad faith in this case bore directly on this issue. As I stated above, the Respondent perjured himself andrecruited family members to back up his false story. This conduct was offensive to the administration of justice, and deserving ofpunishment in costs. This conduct considerably lengthened the hearing. [21] I will award the Applicant full recovery costs for the entire hearing. I turn now to subrule 24(11) to determine what is afair assessment of those costs.

Rule 24(11) factors [ 22 ] Importance, complexity and difficulty of the issues. This case was very important to each party. The legal issues were difficult and complex. The factual issues were not. [ 23 ] Reasonableness/unreasonableness of each party’s behaviour in the case As I have already commented, there is no allegation that the Applicant’s litigation behaviour was unreasonable. Aside from the finding of bad faith made in reference to the Respondent’s evidence on the issue of domestic violence, I do not find that the Respondent’s litigation behaviour was unreasonable.

Respondent’s counsel focussed his argument on the real issues in the case, and made reasonable concessions. [ 24 ] The lawyer’s rates If a party who is entitled to costs is legally aided, it is open to a court to order costs “which reflect normal indemnification amounts rather than the Legal Aid tariff” rates [2] . However, the court is not required to assess costs at the higher level. In this case, both parties, because of their modest incomes, were legally aided. The Applicant’s lead counsel is a staff lawyer of Legal Aid Ontario.

It is common ground that any award I make for costs is assigned by the Applicant to the Plan. I find that the fair and reasonable rate to be employed when assessing the Applicant’s costs is the legal aid rate. [ 25 ] Time properly spent on the case Two issues arise here: 1) whether the Applicant should be compensated for fees for two counsel; 2) whether the time claimed by the Applicant’s solicitors is excessive. [ 26 ] The Applicant’s bill of costs included time for attendance by two counsel through the hearing, and time for preparation by both counsel, with some assistance from a third lawyer.

Counsel’s time for preparation exceeds 400 hours. [ 27 ] This was not a case in which the Respondent, the party requesting the child’s return, decided to employ two counsel, and the Applicant wished to have two counsel to level the playing field. The Plan initially authorised two counsel for the Applicant, and then allowed the same representation for the Respondent. [ 28 ] The witnesses called, besides the parties, were family members or friends. The documentary evidence was not substantial. The legal issues involved did necessitate research. Since this case involved

interpretation of an international treaty, analysis of not only Canadian jurisprudence by the jurisprudence of other Hague signatories was done. However, the research required did not necessitate the use of an additional lawyer at the hearing. [ 29 ] I am not persuaded that use of two counsel at the hearing was reasonable. [ 30 ] I turn to the submission that the time claimed by applicant’s counsel was excessive. Some might be critical of the length of the case presented by the Applicant.

The evidence presented an exhaustive account of the events leading up to the parties’ engagement and marriage, the minutiae of their daily lives, and the relationship between their respective families,. However, given the challenges presented to a party trying to raise a 13(

b) defence, I cannot say that this contextual evidence was irrelevant. I will not reduce the time expended by the Applicant at the hearing. However, I do correct that time to reflect the actual time at the hearing-- 70 hours. [ 31 ] The time shown in the bill of costs for the Applicant’s lead counsel, in addition to attendance at the hearing, for all preparation, including correspondence is 123.05 hours.

Taking into account the fact that, without junior counsel, it would have fallen to him to prepare all the witnesses, and the written material; I think it is fair to allow 2 hours preparation for every hour at the hearing, for a total of 140 hours. At legal aid rates, this totals $20,359.50. [ 32 ] In addition, given the complexity of the legal issues, involved, I would allow 40 hours from junior counsel at $77.56 per hour, to be devoted to research.

This adds $3,102.40 to the bill of costs, for a total of $23, 461.90. [ 33 ] Disbursements properly paid The bill of costs contains an amount for $787.50, incurred to retain an expert with respect to digital images—photographs showing the Applicant’s injuries, intended to demonstrate abuse by the Respondent. No evidence from the expert was presented at trial. However, I understood from counsel that the expert’s opinion had assisted in facilitating agreement that the images had not been altered. I would allow this disbursement.

This brings the Applicant’s bill of costs to $24,249.40. [ 34 ] Any other relevant matter. This is not a case in which a full recovery award should be reduced, even if I had the authority to do so.. I have already noted the significant effect of the Respondent’s bad faith conduct in lengthening the time required for trial. [ 35 ] Both parties are in difficult financial situations. The Respondent has a modest income ($27,000 annually), no assets, and significant debt as a result of earlier proceedings in this case.

I have already taken into account the Respondent’s modest financial circumstances in my decision to employ the legal aid rate to determine appropriate costs. [ 36 ] The Applicant’s financial situation is not superior to that of the Respondent. She is the parent who has the full time

responsibility for caring for Machell; the Respondent is not paying child support. No specific information was provided as to the Applicant’s income, but it is undoubtedly modest. She works part-time in retail, and lives in public housing with her parents and Machell. She has no assets. [ 37 ] I order that the Respondent pay costs fixed at $24,249.40 forthwith. Released: 14 November 2011 Signed: Justice Ellen B. Murray