Court File and Parties

Ontario Court of Justice

Date: January 31, 2017

Court File No.: D52008-10

Between:

Kalpana Alli Applicant/Mother

— And —

Raymond Alli Respondent/Father

Rehanna and Insan Alli Respondents/Paternal Grandparents

Before: Justice D. Paulseth

Endorsement on Costs released on January 31, 2017

Counsel:

• Michal Zalev/Joanna Hunt — counsel for the applicant
• James D. Singer — counsel for the respondent/moving party

PAULSETH J.:

Introduction

[1] On October 4, 2016, I released my decision on this Motion to Change and invited cost submissions within 30 days. Counsel for the father required more time to respond to these and a reply by counsel for mother was also necessary. By January 20, 2017, all submissions on costs were filed. I thank counsel for their submissions and for the books of authorities.

Background

In my decision, I described the history of this matter as follows:

Factual Background

1. On December 4, 2012, there was a final order of joint custody, with the children living week about with each parent and a detailed parenting plan. On September 18, 2014, father commenced this Motion to Change, seeking final decision-making over educational issues. Mother has cross moved by Response to seek sole custody.

2. The parents were married in September 2000 and separated on December 31, 2009. The mother is 40 years of age and the father is 42. They have two boys: CA, born September 4, 2004, and JA born August 29, 2005. The paternal grandmother (PGM) was a primary caregiver for the boys' early years. The litigation began in September of 2010, shortly after mother moved out and, with a brief hiatus from January 2013 until August 2014, has continued until today.

3. Each parent lives with his/her parents, within a short drive of each other. The paternal grandparents (PGP) became parties to the litigation.

4. Both parents work full time. Father earns about $60,000 a year as a credit analyst with an auto sales company and mother makes about $54,000 a year working in the credit department of a bank.

5. For the school year of 2013/14, the boys went to PGM's home every day at lunch as she would "serve them a hot lunch". In August 2014, mother advised father that the maternal grandfather (MGF) would now take the boys for lunch during her weeks. PGM called the Children's Aid Society of Toronto (CAST) about this issue and CAST said it was up to the adults to decide. PGM was apparently accustomed to attending at the school during mother's weeks with the boys.

6. On September 18, 2014, the father commenced his Motion to Change seeking to assume sole decision-making with respect to educational issues. On September 30, 2015, the mother responded with a cross Motion to Change seeking sole custody, now being treated as a Response to a Motion to Change, pursuant to Rule 15(9). A motion for similar temporary forms of relief was heard by Justice C. Jones on October 26, 2015. Voluminous materials were filed and a decision reviewing the history, expediting trial dates, and declining a referral to the Office of the Children's Lawyer (OCL), was given on December 30, 2015.

7. PGM attended six court appearances from October 2, 2014, until and including January 5, 2016. Paternal grandfather (PGF) attended for three of these court appearances with PGM, including January 5, 2016, when an order for questioning on consent was made for the parents and PGM to attend. PGP did not file any Responses to the Motions. PGM had a cardiac event in February, 2016. Apart from some emails to the Ministry of the Attorney General, the PGP did not participate further in this proceeding or attend the hearing.

8. Professionals from the educational, therapeutic, medical, and child protection fields have all been involved with the family. Both boys have asthma. CA has been diagnosed with an anxiety disorder and a learning disability, for which he has an Individual Education Plan (IEP). JA has also been assessed with academic weaknesses and only recently lost his modified IEP designation. The children have told various professionals that they want to live with their father.

Order Made at Hearing of Motion to Change

[2] After trial management telephone conference calls on May 5, June 24, August 9, and August 11, 2016 and almost 6 days of hearing, I made this order:

The order of December 4, 2012 is terminated.

Father's Motion to Change is dismissed. Mother's cross-motion is granted, on the terms following:

1. Applicant/Mother shall have final custody of Caden Samuel Alli born September 4, 2004 and Jalen Alexander Alli born August 29, 2005. She may consult with the respondent/father but has final decision-making with respect to all matters concerning the children. The children will reside primarily with mother.

2. Applicant/mother shall have sole responsibility for applying for and maintaining all identifying documents, including government issued identification, for the children without notice to the father or the need for his consent. If the father needs the passports for travel, mother will give them to him and he will return them promptly on his return.

3. Applicant/mother may travel outside Toronto, Ontario, and Canada, without notice to or the need for the consent of the Father. She will advise father of the contact details of any trip outside Canada for more than 6 days.

4. Respondent/PGP shall have no contact directly or indirectly with the children, unless it is supervised by a professional access supervisor or another third party who is agreeable to both parents. The prohibition on contact includes in person contact as well as contact by telephone, email, text message or any form of communication, whatsoever. This prohibition also includes any form of communication with any resource who has, is, or may be about to treat the children and extends to any relative of the mother's.

5. Access to the respondent/father will be:

• Wednesdays from after school until 8 p.m., or from noon until 8 p.m. if the children are not in school;
• the first, second, and fourth Sunday of each month from 10 a.m. until 6 p.m.;
• December 25 from 1 p.m. until 9 p.m.;
• Father's Day from 10 a.m. until 8 p.m.;
• Further access or varied access at the discretion of the mother;
• Father will be responsible for picking up and returning the children; and,
• Father will keep mother informed as to the contact information for all times during his access.

6. Father may have direct access to all the children's educational and medical information. He may attend at school and medical appointments, independently or, subject to mother's written consent, with the boys. He cannot have direct or indirect access to the children's mental health or counselling information unless the boys and mother agree.

7. I shall continue as the case management judge in this matter. There shall be no Motions to Change by father except with leave of the case management judge. A date to conference any Application for child support may be obtained from the trial coordinator by Form14B.

8. The respondents, both father and PGP, shall be liable for mother's costs of this proceeding in an amount agreed upon by the parties or, failing agreement, as determined by the court. To that end, Counsel for the mother may file, with the office of the trial coordinator, costs' submissions of no more than 3 pages, within 30 days of this order, with attached bills of costs and any offers. The respondents may file no more than 3 written pages, with attachments of bills of costs and offers, within 14 days of receiving the mother's submissions.

Legal Framework for Costs

[3] Justice Pazaratz in Jackson v. Mayerle, 2016 CarswellOnt 3329 sets out the legal framework for costs as follows:

16 In Serra v. Serra, 2009 ONCA 395 (Ont. C.A.) the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

a. To partially indemnify successful litigants for the cost of litigation.

b. To encourage settlement; and,

c. To discourage and sanction inappropriate behaviour by litigants.

17 The assessment of costs is not a mechanical exercise. It's not just a question of adding up lawyer's dockets. Boucher v. Public Accountants Council (Ontario); (2004), 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe, 2010 ONSC 1044 (Ont. S.C.J.).

18 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. Selznick v. Selznick, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis (ON SC), 2005 CarswellOnt 4956 (Ont. S.C.J.); Serra (supra); Murray v. Murray; Guertin v. Guertin, 2015 ONSC 5498 (Ont. S.C.J.).

19 Rules 18 and 24 of the Family Law Rules govern the determination of both liability for costs and the amount of costs. While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribe the broad discretion previously granted to the courts in determining costs. M. (C.A.) v. M. (D.) (ON CA), 2003 CarswellOnt 3606 (Ont. C.A.); Andrews v. Andrews (ON CA), [1980] O.J. No. 1503 (Ont. C.A.); Wilson v. Kovalev, 2016 ONSC 163 (Ont. S.C.J.).

20 Rules 18 and 24, and most of the case law focus on two words: "Success" and "Reasonableness". The latter entails two components:

a. Reasonableness of behaviour by each party.

b. Reasonableness of the amount of costs to be awarded.

21 The starting point in any costs analysis is the presumption that a successful party is entitled to costs. Rule 24(1). Sims-Howarth v. Bilcliffe.

22 To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any written offers to settle made in compliance with Rule 18.

Position of Parties

[4] Counsel for Mother are seeking $155,000 (inclusive of disbursements and HST) for costs in this case. They argue that:

• She was completely successful;
• Her result was as good as her Written Offer of August 2, 2016;
• The issues were complex and important;
• She conducted the hearing in a reasonable manner and the father/paternal grandparents were unreasonable; and,
• The costs claimed are reasonable.

[5] Counsel for Father argues that:

• No costs should be payable as the legal services were provided to the mother on a pro bono basis;
• In the alternative, he charged the father $40,000 for the case and that would be a fair and reasonable amount;
• The grandparents did not participate in the trial; and,
• The grandparents raised the children at their own expense.

Analysis

Success and Offers

[6] There is no dispute that the mother was completely successful in the hearing and that her success equalled her written offer, made in accordance with Rule 18. The written offer of the mother included:

• Sole custody to the mother of both children;
• Mother will consult with father but has final decision-making authority;
• Primary residence with mother;
• Access to father as agreed upon or by court order; and
• Contact with paternal grandmother to be supervised by a third party agreeable to both parents or as selected by the court.

[7] The offer was given in writing August 2, 2016 and the trial began August 16, 2016. It was open until after the trial began and certain dates of acceptance triggered certain cost consequences. This offer was not accepted.

[8] It is not relevant that the mother's counsel acted in part or whole on a pro bono basis. I agree with counsel for the mother that access to justice in family law cases is very important and some would say of more importance than other types of civil litigation.

Factors in Rule 24

[9] The relevant subsections of rule 24 are set out below:

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.

(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.

The Issues in the Case

[10] The issues in this case were critical to whether mother would ever have any role in her children's lives. Father and paternal grandmother had been building a case against her for years and were, under the slim guise of educational decision-making, trying to eliminate her access and completely cut her out of parenting her boys.

[11] To indicate the complexity of this case, a motion for temporary relief before the original application was resolved, was heard before Justice Waldman over two days in 2012. She wrote a lengthy decision making an incremental change to the current schedule which was Monday to Thursday with father and paternal grandparents to week about schedule and set two weeks for trial. Similarly, Justice Jones was scheduled to hear a temporary variation motion during the Motion to Change and declined to make any changes to the final order pending a fuller hearing of the Motion to Change on an expedited basis.

Reasonable Behaviour

[12] Rules 24(5), 24(8), and 24(11)(b) all require that the court consider the reasonableness of each party's behaviour.

[13] Father and Paternal grandparents were unreasonable in many aspects of the case; for example:

• Paternal grandmother clearly "drove" the case from the beginning. She was to be a critical part of the proposed plan by father but did not appear during the hearing;
• Paternal grandparents did not bring a motion to be removed as parties;
• The children were clearly coached and constantly placed in the middle of this conflict by father and his parents;
• Numerous serious false allegations were made by paternal grandmother through father against the mother and her family; such as, the mother transmitting a sexual disease to the boys and several unverified allegations investigated by the local children's aid society; and
• Despite maintaining the position that joint custody was still the correct order, father was taking the children to a family owned cottage as often as possible (alternate weekends and most vacations) but refusing to tell mother where the cottage was or providing a contact number.

[14] Mother was reasonable throughout the case, but particularly in these examples:

• Mother acted at all times in a child-focused manner;
• Mother took steps to keep the children out of the conflict even if it meant she might not look as assertively maternal in the litigation; and,
• Mother did not engage in a wide panoply of professionals in this dispute but, on the contrary, tried to act normally and bring some calm to her children's lives.

Lawyers' Rates and Time Spent

[15] The parties prepared for a lengthy motion for temporary relief in October, 2015 but could not be heard in the hour set for it. A preliminary issue about the involvement of the Office of the Children's Lawyer was argued and a decision given by Justice Jones on December 30, 2015. Costs of the motion were reserved to the trial judge. Questioning was agreed upon. The matter was moved on to assignment court and trial dates were set on April 5, 2016. The pre-trial discussions were held on several occasions, including a last minute request by the father's counsel to add an expert doctor to the witness list, and evidence heard over 6 days. Much of the evidence was filed in documentary form as records and reports. One witness was heard by video conference from Israel.

[16] Counsel for father complains that two lawyers for mother is not reasonable. Counsel for mother however argues, and I agree, that the use of a junior counsel for much of the research, organization, and drafting actually reduced the costs. Mr Zalev is a 2005 call to the bar and a partner with his firm. He charged between $350 and $400 an hour. Ms. Hunt is a recent call to the bar in 2015, and her rates were $185 to $225 an hour. The court can certainly confirm the effectiveness of the documentary briefs and the organization of the materials, all of which were prepared and well-organized by Ms. Hunt. Counsel for both parents and the court could absolutely rely on her work and speedy identification of the necessary document or reference.

[17] The fees outlined by counsel for mother reflect partial indemnity costs until the date of the written offer on August 2, 2016, and full indemnity following the offer, including fees for the hearing. I should note that the partial costs do not indicate a duplication of counsel, but a tactical use of junior counsel for drafting and preparation with more senior counsel supervising and advising. On the full hearing days, junior counsel was used for more hours and senior for the minimal number of hours. Overall, I find the fees reasonable.

[18] There was no dispute about the cost of disbursements. I have reviewed them and found them to be reasonable.

Proportionality

[19] The Mother was clearly successful and the father should have accepted her written offer.

[20] Even if the "full recovery" provisions of the Rules are triggered – by an offer which meets Rule 18(14) requirements – quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner, 2015 ONCJ 318. The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v. Slongo, 2015 ONSC 3327. The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.); Scipione v. Scipione.

[21] In Biant v. Sagoo, [2001] O.J. No. 3693 (SCJ) Justice Perkins stated:

"The preferable approach in family law cases is to have cost 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."

[22] In Sepiashvili v. Sepiashvili Justice Wildman J stated at paragraph 20:

"…Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term "full recovery costs", there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner….."

[23] The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. Pagnotta v. Brown, [2002] O.J. No. 3033 (SCJ); Gale v. Gale, 2006 CarswellOnt 6328; Jackson v. Mayerle.

[24] By the same token, proportionality should not result in reduced costs where the unsuccessful party has forced a long and expensive trial. Murphy v. Murphy, 2010 ONSC 6204; Philippe v. Bertrand, 2015 ONSC 2449.

[25] The Supreme Court of Canada has recognized in Hyrniak v. Mauldin, 2014 SCC 7 that timeliness, affordability and proportionality are essential components of any legal system that seeks to provide true access to justice. Affordability and proportionality require that lawyers budget their time. The expenditure of a disproportionate amount of docketed time will not be sanctioned by the court. Karkulowski v. Karkulowski, 2015 ONSC 3171; Jackson v. Mayerle.

[26] The common theme in the "reasonable expectations" and "proportionality" analyses is that the loser should not have to reimburse the winner for excessive or unnecessarily expensive litigation behaviour which might be regarded as "overkill". Scipione v. Scipione.

[27] It would be impossible to characterize the mother's case in this matter as "overkill", because:

• Mother called very few of the total number of witnesses;
• Mother was responding to the allegations of the father and paternal grandmother;
• By surprise, some of the father's witnesses actually supported the mother; for example, the family doctor;
• Business records from several institutions had to be obtained, analysed, and organized;
• Numerous IPAD recordings of the children, made when they were with father and/or paternal grandmother, had to be obtained and analysed; and,
• Several teachers at the local school were co-opted by grandmother despite rulings on consent that grandmother was not to have as much contact as she had.

[28] The trial was organized in such a way as to fit into 6 days, with the filing of many documents and records in advance. In reality, this hearing could have taken upwards of 20 days of court time.

[29] Although the total fees appear large, two significant factors lend themselves to the fees being quite reasonable:

• The case has actually been a long fought multi-year, almost constant battle; and,
• This hearing was the first full hearing and the stakes were very high, although disguised as modest requests in the pleading.

Some Family Cases Need a Hearing

[30] This case is a good reminder that some family law cases need a court hearing. In 2012, a two week trial was scheduled to be heard on the initial application in this case. That hearing would have been expensive. Mother conceded joint custody to the father and they entered a consent order. He immediately ceded those rights to paternal grandmother and took advantage of the mother for years, including what this court would refer to as very emotionally abusive conduct towards the mother and indirectly towards the boys. The special needs of these boys now must surely have been accentuated by the bizarre and abusive conduct of the paternal grandmother and the father.

[31] The mother did not have access to the funds that father did. Father funded all of this litigation through "loans" from the grandparents. Mother could not have funded this hearing without the good will of her counsel's law firm. This was important litigation to stop bullies from completely ruining the lives of two young boys.

Ability to Pay

[32] There is no dispute that:

• Father earns about $50,000 a year; but pays no rent and little for his expenses;
• Paternal grandparents own their home; and,
• Father and paternal grandmother jointly own a cottage.

[33] There was no evidence before the court in this hearing to explain the absence of the paternal grandparents. The grandparents were ordered, on consent, to attend for Questioning but did not. A letter had been provided earlier in the case management process indicating that paternal grandmother had had a heart attack. The grandparents were clearly very active behind the scenes and father at no time amended his position which sought a more active role on a daily basis for paternal grandmother with the two children.

[34] There is also no confusion about the respondent grandparents' understanding of their liability as they had been ordered to pay costs in earlier parts of this same proceeding. On September 15, 2015, Justice Nevins ordered costs of appearances on September 15, 2015, October 2, 2014, and July 8, 2015, against the father and paternal grandmother in the amount of $3000.

[35] In the initial application, the grandparents had their own counsel.

Conclusion

[36] Having considered all of the above factors, I would order costs payable by father and paternal grandparents, the respondents in this case, in the amount of $150,000, payable within 6 months or on other terms to be agreed upon.

Released: January 31, 2017

Justice D. Paulseth