COURT FILE AND PARTIES
COURT FILE NO.: FC-11-039496
DATE: 20120403
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ashraf Mounir Rofail, Applicant
AND:
Nelly Fayez Naguib, Respondent
BEFORE: J.P.L. McDermot
COUNSEL:
Jennifer Long, for the Applicant
Natacha Leite, for the Respondent
HEARD: By written submissions
ENDORSEMENT
[ 1 ] On January 26, 2012, the parties argued a motion for exclusive possession, custody and access of the children and support issues before me. On February 7, 2012, I issued my endorsement granting the Respondent exclusive possession of the home, primary residence of the children subject to access and child support. I invited submissions as to costs; because of the Respondent’s request to provide reply submissions there was some delay in completion of these submissions and the father’s final reply submissions were received on February 28, 2012. This is my endorsement on costs of the motion.
[ 2 ] The Respondent’s costs submissions confirm that an offer to settle was made by correspondence from the Respondent’s solicitor on December 13, 2012, well prior to either the case conference (which took place on January 9, 2012) as well as argument of the motion. That offer confirmed that Mr. Rofail would leave the matrimonial home and the children would continue to reside there with Ms. Naguib. The offer provided for more generous access than as ordered by me on February 7, 2012 as it provided for access weekly from Thursday to Sunday; my order granted biweekly weekend access and midweek overnight access. The offer did not speak to the issues of support which were also argued and determined.
[ 3 ] The Respondent states that she should accordingly have full indemnity costs based upon her offer to settle and her success at the motion. She claims costs of $17,691.67 inclusive of disbursements and HST as set out in her Bill of Costs, filed.
[ 4 ] Mr. Rofail’s counsel, Ms. Long, states that based upon Mr. Rofail’s attempts to settle, including his requests for counselling and appointment of the Office of the Children’s Lawyer, that success was divided and that her client should not be penalized by costs.
[ 5 ] In considering costs, under Rule 24(1) of the Family Law Rules , [1] costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), in fixing the amount of costs, I may take into account the “importance, complexity or difficulty of the issues” as well as “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”.
[ 6 ] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I am obliged to order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing the amount of costs.
[ 7 ] In the event that a party is more successful than his or her offer, I am bound to order costs on a full indemnity basis: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(14) as noted above.
[ 8 ] The Respondent’s counsel suggests that the within offer complies with Rule 18(14) which requires me to order costs on a full indemnity basis. She notes that there was a reasonable opportunity to settle at the case conference, wherein Nelson J. advised that he would order exclusive possession under the circumstances. Ms. Leite relies upon Deelstra v. Van Osch , 2003 CarswellOnt 204 (S.C.J.) for the proposition that the formal requirements of Rule 18(4) need not be met for there to be an order for full indemnity costs.
[ 9 ] In fact, Rule 18(14) does not refer to the formal requirements of Rule 18(4) or require that the offer be signed by the party or counsel. Accordingly, the fact that the offer was not signed by the Respondent does not necessarily mean that Rule 18(14) is inapplicable in the present situation.
[ 10 ] However, the requirements under Rule 18(14) are fairly specific, as a finding that the Rule applies would then require me to order costs on a full indemnity basis; the Rule states that if the requirements set out in subparagraphs 1 to 5 are met, then the party making the offer is “entitled” to an award of full indemnity costs. I am not prepared to do that in the present case. This is because the offer did not speak to the issues of the appointment of the Children’s Lawyer or support, which were also argued at the motion. The order obtained was not “as favourable as the offer” as support and the Children’s Lawyer were also a part of my order which were not addressed by the offer. No offer was ever made by the Respondent in respect of support. I accordingly do not find that the offer complies with Rule 18(14) which would entitle the Respondent to full indemnity costs.
[ 11 ] However, as Marshman J. did in Deelstra , I can take the offer into account in determining costs pursuant to Rule 18(16). The major issues argued were exclusive possession of the home and child time sharing arrangements; on those issues, the order made bettered the offer to settle. I commented on the Applicant’s behaviour in arranging his affairs in order to manipulate matters in his own favour, including moving his mother into the home and attempting to assume additional child care roles after the date of separation, which I find to be unreasonable conduct within the meaning of Rule 24(11). It is apparent to me, considering the offer and the advice given at the case conference, as well as the correspondence between counsel, that the Respondent was the successful party in this motion. Based upon these factors, I find that the Respondent is entitled to her substantial indemnity costs in this matter.
[ 12 ] What is the amount of costs that the Respondent is entitled to? Ms. Long has noted that a substantial portion of the costs claimed is in reference to the case conference and preparation for the case conference. As correctly noted by Ms. Long, Rule 24(10) states that costs of each step in a family law matter are to be decided summarily after that step is complete. Our court of appeal has directed that the costs of conferences are not to be included in determining the ultimate costs of trial unless costs were reserved at that step: see Islam v. Rahman , 2007 ONCA 622 , [2007] O.J. No. 3416 (C.A.) . That would be even more applicable in the case of a motion.
[ 13 ] The 75 hours, more or less, claimed by the Respondent’s solicitor for the motion is clearly excessive for the motion alone. Ms. Long is also correct that I cannot determine with clarity from the Bill of Costs which steps were included in the preliminary steps leading up to trial, which costs are related to the case conference, and which steps are specifically related to the motion. This is notwithstanding the fact that I allowed reply submissions to be filed which would have provided the Respondent’s solicitor an opportunity to provide a further and more particularized breakdown of the fees and disbursements claimed; instead she chose to argue that all of the costs should be included, which is not the law of this province. Accordingly, I am left with extrapolating from the costs claimed which costs are related to the motion, and which are not.
[ 14 ] The first portion of the bill of costs (December 13 to 30, 2011) appears to be related to the initial stages in the application, including correspondence and the like, as well as preparation for the case conference, which would not be included in the costs of this motion. I am excluding these costs ($4,407.14) from the costs of this motion. I am specifically disallowing disbursements as well in the first portion of the Bill of Costs as it is unclear as to what those disbursements are prior to January 3, 2012 and whether they included disbursements for matters which are not to be included in the costs of this motion.
[ 15 ] The second tier, being costs incurred between January 3 and January 26, 2012, includes the costs of the case conference, which again are not included in the costs of this motion. The evidence is that this was a lengthy day; one lawyer states that it went all day; the other lawyer stated that it took 5.5 hours to complete the case conference. I am deducting 7 hours of lawyers time at $262.50 per hour from the time claimed in the second tier, reducing the amount by $2,076.38 from that time (inclusive of HST) to come to a total claimable of $10,775.35 inclusive of disbursements and HST. [2] Taking into account the costs claimed for preparation of the Bill of Costs in the third tier (February 7, 2012), the total legal costs claimable are $11,207.58. [3]
[ 16 ] Accordingly I awarding costs of the motion on a substantial indemnity basis, inclusive of HST and disbursements in the amount of $9,000.
[ 17 ] The Applicant requests that these costs be payable from the matrimonial home proceeds when the home sells. He states that he has had to cash in his RSPs (and I presume that these are the “registered” funds set out in the schedule to the Respondent’s reply cost submissions) to pay his legal fees; he states that it would invoke a hardship on him to force him to pay his costs at this point in time considering that he has to obtain his own residence and pay his living expenses and support as well as his own legal fees.
[ 18 ] That may be so, but that does not take into account the hardship invoked on Ms. Naguib by forcing her to bring and argue this motion. Mr. Rofail heard Nelson J.’s views that he would order exclusive possession, but ignored that advice. He had a reasonable offer to settle, and I expect that Ms. Naguib has had to make her own arrangements to pay her lawyer to deal with this motion. There is nothing indicating that Ms. Naguib can wait until the home sells in order that she pay her own legal costs.
[ 19 ] Accordingly, the Respondent shall have her costs of this motion in the amount of $9,000 which are payable by the Applicant to the Respondent within 60 days of this order.
McDERMOT J.
Date: April 3, 2012
[1] O. Reg 144/99
[2] $12,852.31 - $2,076.38
[3] $432.23 + $10,775.35