Hussain v. Alam

Court File No.: FS-12-17812 Date: 2013-04-17 Superior Court of Justice - Ontario

Re: Ayesha Hussain, Applicant And: Salman Alam, Respondent

Before: Madam Justice Darla A. Wilson

Counsel: Phyllis Brodkin, Counsel for the Applicant Aaron M. Franks, Counsel for the Respondent

Heard: By written submissions

Endorsement on costs

[1] The Applicant-Wife brought a motion for an order requiring the Respondent-Husband to pay the tuition costs of private school pursuant to a signed Separation Agreement. The Respondent brought a cross motion to enforce access provisions as set out in the Agreement. I heard both motions and released written reasons in which I dismissed the Applicant’s motion and granted the Respondent the relief sought in his motion. I received costs submissions from both counsel.

[2] The Respondent requests costs of $40,829.62, being costs on a full recovery basis. It is submitted the Applicant’s motion was without merit and her behaviour was unreasonable and she refused to entertain reasonable settlement offers for the motions, thus forcing the matter on to a hearing. It is submitted that the result of the motion is more favourable to the Respondent that the terms of his offers to settle the motion.

[3] The Applicant argues that the position taken by the Respondent was not reasonable and that there ought not to be any costs awarded for the motion. In the alternative, it is submitted that the amount being claimed is exorbitant and well beyond any reasonable expectation of what costs would be incurred in dealing with the motions.

Analysis

[4] Rule 24 of the Family Law Rules governs costs and states that there is a presumption that the successful party is entitled to costs. Various factors are set out as considerations when the court is fixing costs. They include the importance and complexity of the issues, the party’s behaviour and whether it was reasonable or unreasonable as well as the hours and rates being claimed.

[5] In the context of a family law motion, in my opinion, particular attention must be paid to considering whether there can be a compromise to resolve the motion that avoids the necessity of attending before a judge for an outcome that is uncertain and expensive. I place great importance on whether in the circumstances each party’s behaviour was reasonable and geared towards resolution. Our Court of Appeal has made it clear that there are three objectives to costs in family law matters: to provide successful parties with partial indemnification for costs incurred; to encourage settlement; and to discourage unreasonable behaviour: Serra v. Serra, 2009 ONCA 395, 2009 CarswellOnt 2475 (C.A.)

[6] Rule 18(14) deals with the costs consequences of a party’s failure to accept an offer. It provides that, unless the court orders otherwise, a party who makes an offer relating to a motion is entitled to costs to the date the offer was served and full recovery of costs from that date onwards on certain conditions being met, one of which is that the party who made the offer must obtain a result that is as favourable as or more favourable than the offer delivered.

[7] In the case before me, Mr. Franks submits that he made a formal offer to settle the motion March 15, 2012 as well as several other proposals to resolve the matters. He argues that my order was less favourable to the Applicant than his offer to settle and he ought to be entitled to the provisions of Rule 18(14).

[8] In my opinion, the conduct of the Applicant cannot be described as reasonable. There was a signed Separation Agreement in place which stated that the Respondent was to pay up to $1500.00 per month towards section 7 expenses attributable to Ayyub’s autism. This included therapy or educational assistance for autism. The Respondent paid the costs of treatment by Dr. Porter and at the time of the motion, Kinark was funding the rest of Ayyub’s treatment for his autism.

[9] The Applicant had enrolled the child in Montessori school and was seeking to have the cost of this paid by the Respondent pursuant to section 5 of the Agreement, when she was aware that the Respondent did not agree with Ayyub attending private school. I rejected this submission and noted, “Indeed, when I asked counsel for the Applicant to point out the treatment requests that the Respondent had refused to pay, she was unable to do so. The Applicant’s motion is devoid of merit and it is dismissed.”

[10] In my view, the motion was ill-conceived and ought not to have been launched. The motion sought to enforce a provision of the Settlement Agreement when there was no breach on the evidence. Further, it was not reasonable to persist with the motion after receiving the Respondent’s materials. The offers to settle served by the Respondent were reasonable attempts to compromise and avoid litigation, yet they were not accepted.

[11] Furthermore, the Applicant unilaterally terminated access at the end of September 2012 on the basis of concern about the conduct of the Respondent’s wife. This was investigated by the CAS and while their investigation was ongoing at the time of the motion, the evidence before me was that they concurred that the Respondent continue with regular access visits but not at his home where his wife resides. Notwithstanding this recommendation and the fact that the Agreement provided for specific access, the Applicant decided to terminate access. This was neither appropriate nor reasonable. In my reasons, I noted, “The Applicant cannot unilaterally determine that access visits are going to cease; nor can she rely on the preferences allegedly expressed by an 8 year old boy...” She refused to compromise on the issue of driving for access visits. The Respondent ought not to have been forced to incur the expense of bringing a motion to obtain the access he was already entitled to pursuant to the Agreement.

[12] I agree that a party cannot litigate with impunity: Katarzynski v. Katarzynski, 2012 ONCJ 393, 2012 CarswellOnt 8116 (O.C.J.) To put it another way, parties cannot take an untenable position, refuse to negotiate to achieve a reasonable compromise, and then when the outcome is adverse, plead that it would be unfair to require them to pay costs. In this case, my order resolves most of the issues in this application, apart from some disclosure items. The Respondent is entitled to his costs.

[13] In my view, the appropriate scale of costs is that of full indemnity for the reasons that I have set out. The Respondent achieved a more favourable result than the terms of his settlement proposals. I have read the correspondence from counsel for the Respondent as far back as July 2011 requesting documentary disclosure and suggesting compromise to avoid court.

[14] I have reviewed the Costs Outline submitted by counsel as well as their written submissions. I have considered the factors enumerated under Rule 24, including the time spent, the results achieved, and the complexity of the matter, as well as the application of the principle of proportionality.

[15] Furthermore, I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3rd) 291 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[16] The Respondent served a reasonable offer to settle that complies with the provisions of Rule 18. In my view, he is entitled to his costs from March 15, 2012 forward. Prior to that, the Respondent’s solicitors were drafting pleadings, revising them preparing the financial statement. The sum of $39,052.59 is claimed after service of the offer on a full indemnity basis. That amount is objected to by the solicitor for the Applicant as being excessive. I agree that it is the function of the court to fix costs in reasonable amounts and not to simply fix them based on the time spent: Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.J.)

[17] What is a reasonable amount? It is clear that the Court is entitled to consider whether the amount claimed is appropriate, even accepting that the time was spent. I note that this was a motion that took a couple of hours to argue, without cross examinations on affidavits or other steps. The issues were not unduly complex and the case law would have been easily obtained as the issues are common ones that arise in family litigation.

[18] I have reviewed the docketed time and I appreciate that Mr. Franks had a junior solicitor perform a great deal of the work on the file in order to minimize costs. However, I note that Ms. Whitley has docketed time of 82 hours from March 15 forwards while another associate has an additional 10 hours of time. In my view, these hours are excessive given the nature of the motions. For example, there was more than 12 hours of docketed time in one day for drafting an affidavit and revising a financial statement. The following day there was a further 12.5 hours of time for drafting an affidavit, reviewing the file and providing instructions to others. The following day a further 4.1 hours was docketed to prepare and finalize motion materials.

[19] That being said, significant amounts of time had to be expended as a result of the motion launched by the Applicant and the position taken by her on access. I concur with the comments of Gray J. in Cimmaster Inc. v. Piccione, 2010 CarswellOnt 609 (O.S.J.) where he stated: “The concept of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.”

[20] The Applicant was represented by a senior member of the family law bar and she cannot be heard now to say that she is surprised by having to pay costs in the quantum being claimed on a full indemnity scale as a result of her refusing to accept an offer to settle and forcing the matter on to a hearing. In my view, taking into account all of the circumstances, I am of the opinion that the sum of $25,000.00 is fair and reasonable and I fix costs to the Respondent in that amount, payable by the Applicant.

D.A. Wilson J.

Date: April 17, 2013