2017 ONCJ 269, 2017 ONCJ 269

CITATION : Al Jarrah v. Ashmawi, 2017 ONCJ 269 DATE : April 27, 2017 COURT FILE NO. D82175/15 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) OLA AL JARRAH ) ) ) ADELA CROSSLEY, for the APPLICANT ) APPLICANT ) ) - and - ) FADEY ASHMAWI ) ADRIAN BAKER, for the RESPONDENT RESPONDENT ) ) ) ) ) ) HEARD: IN CHAMBERS JUSTICE S.B. SHERR COSTS ENDORSEMENT [ 1 ] On April 3, 2017, the court released its reasons for decision in this case. See: Al Jarrah v. Ashmawi , 2017 ONCJ 218 . [ 2 ] The court gave the parties the opportunity to make written costs submissions. The applicant (the mother) seeks her costs of $3,900.

The father submits that no costs should be ordered. [ 3 ] This case was sent to trial for multiple issues, including: custody of the parties’ two-year old child (the child): incidents of custody (including travel with the child and the right to move with the child outside of Ontario); access and child support.

[4] At the outset of the trial, the parties reached an agreement that the mother have final custody of the child. They agreed tocommunication terms and to the ability of the mother to obtain government documentation for the child without the father’s consent. Theparties also agreed on final child support. [5] The issues of access, travel and the ability of the mother to move the child’s primary residence outside of Ontario remainedoutstanding. [6] On the first day of trial the mother completed her testimony.

The case was adjourned to a second day for the father to completehis testimony. [7] During the second day of the trial the parties settled the access issue. This left the following issues for the court to decide:

a) Could the mother move the child’s primary residence outside of Ontario without the written consent of the father or prior courtorder?

b) Could the mother travel for vacation purposes with the child to a country that is not a signatory to the Hague Convention?

c) Could the mother travel outside of Canada with the child, without prior notice to the father, in the event of an emergency?

d) Should the court make a police enforcement order? [8] In its decision the court did not restrict the mother from traveling with the child to a country that is not a signatory to the HagueConvention, but set out specific terms the mother must follow if she is travelling. The court did not restrict the mother to living inOntario, but ordered that she cannot move outside of Canada with the child without the father’s consent or prior court order and that shemust provide notice to the father if she planned to move with the child outside of the City of Toronto.

The father’s request for a policeenforcement order was dismissed. [9] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 , [2009] O.J. 1905 (Ont.

C.A.) stated that modern costsrules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, toencourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflectwhat the court views is a fair and reasonable amount that should be paid by the unsuccessful party. [10] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates apresumption of costs in favour of the successful party.

Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe (ON SC), [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has beensuccessful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson (ON SC), [2008] O.J. No. 1978 (SCJ). [11] Both parties made offers to settle. Neither party made an offer to settle that was more favourable to them than the final result.However, the offers to settle reflected a sincere desire by both parties to resolve the matter.

Although it took some time, the parties wereable to eventually resolve most of the parenting issues and the issue of child support. [12] There was divided success on the issues that were resolved. The mother was successful in obtaining a sole custody order – thefather should have conceded this issue much earlier. Although the father offered sole custody of the child to the mother in his offer tosettle, it was conditional on terms that would have restricted the mother’s ability to travel with the child or to move the child’s residenceoutside of Ontario (terms that were not ordered).

The father was more successful on the issue of access. The mother had proposed thataccess be in her discretion. She eventually agreed on the second day of trial to the father’s proposal to use a private supervised accessservice. She should have agreed to this earlier.

The parties compromised on the issue of child support. [13] The mother recognized that there was divided success on the settled issues in her submissions and only seeks her costs pertainingto the remaining issues that were tried. [14] The mother was the successful party on these remaining issues, albeit with some additional terms set out by the court. [15] The father did not rebut the presumption that the mother is entitled to costs.

[16] In making this decision, the court considered the factors set out in subrule 24 (11), which reads as follows: 24

(11) 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. [17] The case was important for the parties. It was not complex or difficult. [18] The mother acted reasonably in this case. The father paid inadequate child support until the final settlement and only paid a smallportion of a $2,000 costs order made against him by Justice Debra Paulseth. This was unreasonable behaviour. The father does get creditthough for actively attempting to settle the case. [19] The rates claimed by the mother’s lawyer ($300 per hour) are very reasonable. [20] The mother restricted her claim to time spent on the second day of trial and on costs submissions.

The ten hours claimed isreasonable. The court considered that some of this time likely overlapped with the remaining access issue that was resolved. [21] The mother made a mathematical error in her bill of costs. Her time ($3,000) plus HST claimed ($390), comes to $3,390 – not$3,900 as set out in her bill of costs. [22] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario (ONCA), [2004] O.J. No. 2634 (Ont. C.A.) and Delellis v Delellis and Delellis (ON SC), [2005] O.J. No. 4345.

Boththese cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 9: However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize thetraditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and theoutcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. [23] The court considered the father’s ability to pay the costs order (see: MacDonald v. Magel (2003) (ON CA),67 O.R. (3d) 181 (Ont. C.A.). The father lives in Egypt and is a medical resident. His parents pay his expenses. He plans to travelbetween Egypt and Canada twice each year. The father can afford the costs order that will be made.

He will be given time to pay them. [24] Taking into account all of these considerations, an order shall go that the father shall pay the mother’s costs fixed in the amountof $2,500, inclusive of fees, disbursements and HST. The father may pay the costs to the mother at the rate of $250 each month, startingon June 1, 2017. However, if the father is more than 30 days in default in making any payment, the remaining costs owing at that timeshall immediately become due and payable. Released: April 27, 2017 ________________________ Justice Stanley Sherr