Court File and Parties
Date: June 10, 2016
Ontario Court of Justice
Re: Marcia Cajas and Lawrence Zamora – Applicants
And: Bassam Yosuf – Respondent
Before: Justice Roselyn Zisman
Counsel:
- Guy Hunter - for the Applicants
- Jagjit S. Bhathal and Ella Aiaseh - for the Respondent
Heard On: December 15, 2015
Costs Endorsement
Introduction
[1] The issue of costs arises out of an Application by the Applicants, the maternal grandmother and maternal uncle, for access to the Respondent's two children Nasrin who is 8 years old and Miah who is 3 years old. The mother having died on May 5, 2014 due to acute alcohol intoxication.
[2] Prior to the death of the mother and for several months after, the parties and the children resided together but in October 2014 the Respondent and the children moved from the home of the Applicants. Nasrin was traumatized by her mother's death and still had vivid memories of her drinking, blamed the mother's family for not helping the mother overcome her addiction and instead the family encouraged it. Based on statements by the children and the recommendations of a therapist, the Respondent concluded that it was not in the best interests of either child to have contact with any member of the mother's family. After this decision was conveyed to the Applicants, it was also alleged by the Respondent that the Applicants on several occasions approached the children on school property without his consent and this further upset the children. The Applicants then commenced this Application for access alleging that they had a previous loving relationship with the children and that the Respondent was now attempting to alienate the children from them. The Respondent filed his Answer and also sought a restraining order.
[3] The parties attended before me on a case conference on September 25, 2015 and on consent an order was made for the Office of the Children's Lawyer to be appointed. Based on the extensive briefs filed by the parties and after a discussion about the merits of the application I strongly recommended that the Applicants consider withdrawing their application.
[4] On the return of the matter on December 15, 2015 I was advised that neither party had filed their intake forms with the Office of the Children's Lawyer and that the Applicants on consent were withdrawing their Application and consenting to a restraining order as requested by the Respondent. The only contentious issue was costs.
[5] Both counsel made oral submissions, filed briefs of authorities and counsel for the Respondent filed her Bill of Costs.
Position of the Parties
[6] Counsel for the Respondent seeks costs of $14,038.84 on a full indemnity basis and $9,827.20 on a partial indemnity basis. It is the position of the Respondent that the Applicants should not have proceeded with their application and that counsel attempted to resolve the case before the court proceeding but that the Applicants proceeded with their court action before waiting for reports from the child's therapist which would have informed them about the merits of their case. This in turn required the Respondent to respond and incur legal expenses. Given the serious trauma to the children and the Respondent's wish to protect his children he instructed counsel to use all of their efforts to respond and persuade the court of the merits of his position.
[7] Counsel for the Applicants submits that there should be no costs ordered or in the alternative, costs of $1,000. It is submitted that the Applicants commenced their court proceeding in good faith and at the time there was merit in their request for access and they withdrew when the circumstances changed and when they heard my comments at the case conference. It is also submitted that the court should consider the reasonable expectations of the parties when fixing the amount of costs.
Applicable Legal Principles
[8] Rule 24(1) of the Family Law Rules provides guidance on costs in a family law context. Rule 24(1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.
[9] As in this case, as the Applicants withdrew their application Rule 12(3) is applicable. It provides that:
A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise.
[10] Rule 24(11) provides a further list of factors a court should consider in dealing with 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 behavior in the case;
c. the lawyer's rates;
d. the time properly spent on the case, including conversations between the lawyer and the party, 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.
[11] In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
- to partially indemnify successful litigants for the cost of litigation;
- to encourage settlement; and
- to discourage and sanction inappropriate behavior by litigants.
[12] In Biant v. Sagoo, Justice Perkins considered the costs award scheme under the Rules and commented, at para. 20:
[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe, a discretion under r. 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules' preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.
[13] The Ontario Court of Appeal in the recent case of Forrester and Dennis, 2016 ONCA 214 confirmed this approach and the court further reaffirmed its decision in Sordi v. Sordi, 2011 ONCA 665 at para. 21, "In the context of family law disputes, a court need not find special circumstances to make a costs award approaching substantial indemnity."
[14] I am also mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Counsel, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant. Counsel for the Applicants relies on the comment made at para. 38 of the decision namely that, in deciding what is fair and reasonable the expectation of the parties concerning the quantum of a costs order is a relevant factor.
Application of Legal Principles to the Facts
[15] In determining the amount of costs, I have considered the legal principles and the following factors as set out in Rule 24(11) as follows:
a. The importance, complexity or difficulty of the issues: Although not complex the issue was extremely important to all parties.
b. The reasonableness or unreasonableness of each party's behavior in the case: Although the Applicants acted reasonably in withdrawing their case, I find that they prematurely commenced and proceeded with the court proceeding. Ms. MacAlpine, who was counsel for the Respondent and handling the estate issues spoke and corresponded with the Applicants' counsel and advised of the reasons the Respondent was not agreeing to access. Applicants' counsel responded with correspondence attaching an unissued Application dated June 16, 2015 and asking that counsel advise if service would be accepted. On June 17th, Ms. Aiaseh, who then took carriage of the case, sent a letter advising that Nasrin's therapist had advised against access to the maternal family and she raised concerns about the Applicants and other members of their family attending at the children's school. Applicants' counsel responded on June 24th, requesting access for Miah as there was no report indicating she was opposed to access. Counsel had attached a revised application to his letter and indicated that they would like a copy of the therapist report and a response to the issue of access to Miah by the end of the next day. Instead of waiting for a response and the therapist report, the application was issued the next day. Respondent's counsel accepted service and on June 26th wrote another letter setting out that the Applicants again attended on June 25th at the children's school in an attempt to see them despite previous correspondence requesting they stop during this. On July 24th the Respondent served his answer and 35.1 affidavit and attached the therapist notes from Walk-In sessions at the Etobicoke Children's Centre indicating Nasrin did not wish to have contact with the mother's family. A report dated July 23rd from Dr. Glick, a psychiatrist who had been involved in Nasrin's care since December 2014, was also attached. It is submitted that the reports were sent to Applicant's counsel as soon as they were received. The parties then attended at the first appearance court and set a case conference date. On September 22nd, the Respondent served his case conference brief and attached a report from a therapist at Hincks-Dellcrest and all the other reports and disclosure from the child's doctor and therapists. A physical and psychiatric report of the father was also attached. In the covering letter, Respondent's counsel also referred to the legal test regarding deference to parental autonomy in granting grandparents access. Although the Respondent did not serve a formal offer to settle, it is clear that counsel was attempting to provide the Applicants with all of the reports about Nasrin's emotional state. Further, if the Applicants had delayed proceeding to court, they may have more fully understood the Respondent's position that there should be no access to either child. As a result of the Applicants choosing to proceed with the court process, the Respondent incurred legal expenses.
c. The lawyer's rates: The hourly rate for Mr. Bhathal who has 17 years of experience is $375 and the hourly rate for Ms. Aiaseh who has 2 years of experience is $250. It is submitted by the Applicants' counsel that both hourly rates, especially the rate for Ms. Aiaseh is too high for "lower court". He submits that he has 17 years of experience and his hourly rate is $250. Based on my experience I do not find that either hourly rate is excessive. The rates are consistent with rates charged by other counsel who regularly appear in this court. I see no basis for different hourly rates in the Ontario Court of Justice than in the Superior Court of Justice. The complexity and difficulty of issues is already a factor that the court is required to consider. The same work is required in preparing documents and for advocacy skills regardless of the level of court. I find that the hourly rates are reasonable.
d. The time properly spent: I have reviewed the Bill of Costs which outlines a summary of the work done for each step, and indicates the time spent by each lawyer and the law clerk. Although the actual dockets would have been more helpful especially to determine if there was any duplication between the work done by both counsel. Although the times appear generally reasonable when there are more than one counsel working on a file there is inevitably some duplication and I find it is reasonable to discount the time spent as a result. I agree with the submissions of Applicants' counsel that the Applicants should not have to pay costs for two counsel to attend court as that is a choice made by counsel. Both of the Respondent's counsel attended the case conference and in the summary there is just a general heading for review of the Applicants' case conference brief, preparation of the case conference brief and attendance at the case conference. The time for Mr. Bhathal is 5.8 hours and Ms. Aiaseh is 11.2 hours. Without further details, I find that it is reasonable to simply disallow the time spent by Mr. Bhathal.
e. The expenses properly paid and payable: The usual disbursements are claimed for $447.48.
f. Any other relevant matter: Counsel for the Applicants submits that the court should consider that the case resolved very early on and before any contested motion and that the court should also consider the Applicants' reasonable expectation regarding the amount of costs. I accept these are both valid considerations. But for the Applicants to consider that $1,000 is reasonable is not even close to the realm of being reasonable. As I told counsel in submissions I expect that a party cannot even walk into a family lawyer's office with less than a $1,000 for an initial consultation. Even on the simplest case, without a contested motion, counsel is required to review the Applicants' pleadings, meet with their client, prepare responding pleadings, attend a first appearance court and then prepare a case conference brief and attend for what is a pivotal step in the proceeding so that a contested motion can be avoided. As was pointed out by the Respondent's counsel, she prepared a thorough case conference brief, reviewed the law and it was not just "a cut and paste" from the Answer. Further, in this case counsel attended on December 15, 2015 as although the Applicants' counsel had advised her that his clients would be withdrawing their Application, no Notice of Withdrawal had been filed with the court.
Applicants' counsel relied on the case of Leitch v. Leitch where no costs were ordered when the Application was withdrawn. However, in that case a grandmother applied for custody of her grandchild based on a reasonable, genuine and bona fide belief that the child needed to be rescued from an unstable and detrimental environment. Once the children's aid society became involved, she agreed that the child would be safe in the care of the father and withdrew her application. In this case, although I believe that the Applicants were genuine in their desire to have access to the children, they did not act reasonably. Before the Application was commenced, the Applicants were aware that Nasrin was being seen by a therapist and counsel for the Respondent had outlined the concerns about access. Instead of waiting to obtain further and better information they proceeded to court which resulted in significant costs to the Respondent. I do not find that this is a case where there should be no costs or minimal costs. The Applicants should have been aware that by proceeding as they did, they faced the prospect of paying the Respondent's legal fees if they were unsuccessful. To their credit they appreciated the weakness of their case and withdrew. Otherwise if this case had proceeded any further the costs, if they were unsuccessful would have been significantly higher.
[16] In considering all of these factors, I find that a fair and reasonable amount that the Applicants should pay to the Respondent is $10,272.
Order
- The Applicants, Marcia Cajas and Lawrence Zamora shall pay to the Respondent Bassam Yosuf costs fixed at $10,272.00 inclusive of disbursements and applicable taxes. Costs to be paid within 30 days.
Justice Roselyn Zisman
Date: June 10, 2016