COURT FILE AND PARTIES

COURT FILE NO.: FS-12-375636

DATE: 20130828

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shahed Anwar Quazi, Applicant

AND:

Shamima Akhter Bhuiyan, Respondent

BEFORE: Czutrin J.

COUNSEL: Michael Stangarone, for the Applicant

Warren Milne, for the Respondent (Mr. Milne assisted in Costs Submissions without attending)

HEARD: Written Costs Submissions

ENDORSEMENT

[1] This endorsement deals with the issue of costs arising from my April 5, 2013 endorsement (Quazi v. Bhuiyan, 2013 ONSC 1738) released after hearing oral evidence on the question of whether the Respondent mother had complied with terms of the Consent Order granted by Paisley J. on October 29, 2012 thereby entitling her to a relocation expense of up to $48,000 from the Applicant father and the right to select the school where the parties son (Atif) would attend as of January 1, 2013.

[2] I found in favour of the father and as result he got to choose the child’s school and was not required to pay the mother any relocation expense.

[3] The father is entitled to costs and seeks costs of $39,637.77. The amount is supported by his counsel’s Bill of Costs.

[4] The mother appropriately, on my findings, concedes that costs in favour of the father should be ordered but submits that the amount claims is excessive is not all recoverable as certain attendances costs were not fixed , she is impecunious and needs time to pay. She also submits that since the parties continue to have approximately equal time and the father is paying full table child support (although he might be entitled to a reduced amounts) that if she is obliged to pay more than it will impact on her ability to meet the child’s needs. She asks that I fix costs at $16,605.84 to be paid at the rate of $100 per month.

[5] The issue was described by me in my April 5, 2013 endorsement as follows:

[8] It was understood and agreed that Atif had to change schools by January 1, 2013. As such the issue of the school, mother’s new residence and whether she was entitled to the relocation payment was intended to be completed on or before January 1, 2013.

[9] Part four of the Minutes of Settlement and resulting court order provided that on or before January 1, 2013, the mother “shall permanently relocate to a residence within 30 km of the husband’s residence.”

[10] If the mother relocated within the 30 km provided for, then Atif was to attend a school within the school catchment area of the mother’s residence. That is, she got to choose the school.

[11] The father agreed and he was ordered to cover the mother’s relocation expenses if she complied with the terms of relocation. If she moved within 15 km of the father’s residence, he was to pay her $48,000; and if she moved within 30 km he would pay her $43,200.

[12] If a dispute arose between the parties as to the distances between the mother’s proposed new residence and the father’s existing residence, the distance would be measured according to the calculation provided by “Google Maps” as the most direct route.

[13] The Minutes of Settlement and the resulting court order also provided for different methods of payment depending on whether the mother leased or purchased her new residence. If she leased, the father was to provide an upfront payment of $7,500. If the mother purchased a residence, the upfront payment would be $20,000 by the closing date for the purchase.

[14] The order detailed what would be required of the mother for proof of purchase or lease, that it was a permanent relocation and the distance and how the relocation payments would be made. It went into great detail depending on whether the mother was purchasing a new or an existing home.

[15] Depending on whether the payment was $48,000 or $43,200 (based on the distance from the father’s home) and the balance after payment of either the $7,500 or the $20,000 as described above, the father was to pay $1,200 per month until the balance was fully paid.

[16] The Minutes of Settlement and resulting court order provided what was to happen if the mother, after her initial relocation, then moved again to a distance greater than 30 km, within the first three years after signing the Minutes of Settlement. If she moved outside of the 30 km distance within the first three years, the mother was to repay the father all of the relocation expenses he had paid.

[17] Unfortunately, as this endorsement explains, the parties disagree as to whether the mother has complied with the terms entitling her to choose the school and to receive any relocation payment. The dispute includes the distance between the parties’ homes and whether the mother has permanently relocated.

[18] On these issues, on February 21, 2013, the parties first appeared before Goodman J. She correctly concluded that the material, “was replete with credibility issues, which for the most part can only be fairly determined if the material is tested by oral evidence.”

[6] The father’s counsel at the hearing had also represented him in negotiating the Minutes of Settlement dated May 22, 2012 that ultimately resulted in the October 29, 2012 Consent Order. The mother had the services of Mr. W. Milne who assisted the mother and I was appreciative of the fact the he appears to have also assisted her in costs submissions. Mr. Milne appears to have done this work on a pro bono basis.

[7] The hearing took two days and my conclusions were as follows:

[56] The evidence is consistent with and I find that the mother has not complied with the terms of the Minutes of Settlement and the resulting consent order. She has not moved permanently. She is not entitled to a relocation payment or to choose the child’s school,

[57] The child is to remain in his current school until further order or agreement in writing of both parties.

[58] The parents are obliged to give 90 days’ notice in writing of any proposed changes in residence and provide details of the new intended residence.

[8] This case continues to speak to the significant issues faced by the Family Justice System on such issues as legal fees, access to justice, the role of costs and the critically important need for affordable legal representation for all parties throughout the process.

[9] This case first commenced in 2008 by father’s Application when he had different counsel. The mother also retained counsel to file her Answer.

[10] I do not intend to review, for the limited purpose of this endorsement, all that occurred, but in 2008 the parties and their counsel appeared before three different judges, another judge in 2010, and then two others in 2011 and one more in 2012 when they finally settled until the issues described returned to the court and I heard the matter.

[11] The father appears to have had two different firms represent him from the beginning and I am unclear how many different lawyers have acted for the mother.

[12] While these parties had a brief marriage they have a child who turned seven this past July and it has been over five years since the Applicant/father first commenced the court process that culminated in Minutes of Settlement and the Consent Order that gave rise to the dispute I resolved after a focused and brief hearing. The consent order resulted in each party being responsible for their own costs. I do not know how much either of them spent on legal fees to the point of the consent order.

[13] Much to the parties credit they resolved the parenting issues by way of joint custody, with a near equal sharing parenting schedule. The father pays near full table amount even though the child’s time is near equal. In spite of the issues I was asked to resolve neither party sought to change the parenting schedule or joint custody.

[14] The final Minutes and resulting Order encouraged the mother to move closer to the father’s already established home to facilitate the a school for their son equi-distant between the parties homes and hence the entitlement to a relocation payment that the father was agreeable to pay to make that happen, however, I found that the mother had not met the conditions, in fact, I thought she attempted to mislead the father.

[15] The issues were financial and the right to choose the child’s school to facilitate the child’s time with the parents. The creative resolution reached by the parents for how to decide school and the father’s willingness to facilitate the mother’s move appeared to be child focused.

[16] The father’s income is in excess of $100,000 and he owns a home.

[17] At the time heard the evidence, the mother’s plans seemed unresolved and in flux, perhaps, because of her goals with her new husband.

[18] Father’s counsel prepared thoroughly and made serious efforts to resolve the case prior to the return to court, yet as this endorsement will outline the costs of $39,637.77 on an issue that if it was strictly considered from the financial issue would appear disproportionate to the amount involved. The resolution of the issue at first blush appeared to rest on interpretation of how to calculate the distances between the mother’s proposed new residence and the father’s existing residence, and how to apply the parties’ agreement that “the distance was to be measured according to the calculation provided by “Google Maps” as the most direct route.” In the end what proved to be a more important issue was what I found as the the mother’s attempted deception and that she had not moved permanently.

[19] This case raises costs factors outlined in Family Law Rule 24 (11). (I emphasize what I find is most relevant here.)

(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. O. Reg. 114/99, r. 24 (11).

[20] While the father’s position was meritorious it is difficult to justify the amount of costs claimed. While father’s counsel (and lawyers and others in his firm) did thorough and professional work, I question whether the number of hours and people in the firm working on this case, that was largely factually driven, should have resulted in that much billable time spent.

[21] As noted the mother’s two-page written submissions concedes that costs are appropriate, but asks that they be fixed at $16,605.84 and she claims that she is impecunious and asks that she be able to repay these costs at the rate of $100 per month so as not to impact her care of the parties’ son.

[22] The Applicant appropriately provides Bill of Costs that commenced with work as of November 1, 2012 when counsel drafted a letter to opposing counsel seeking to address compliance with the October 29, 2012 Consent Order. It is not lost on me that although the order was dated October 29, 2012, the Minutes were entered into May 22, 2012 (nearly five months earlier and the dates and timelines were critical as the “relocation fee” intended to facilitate issues consistent with the child’s best interests, residence and schooling by January 2013.

[23] The mother’s costs submissions challenge any costs claimed being considered related to work done by the father’s counsel up to and including the motion of January 31, 2013 and other attendances where costs were not decided at each step by the judge who dealt with the case pursuant to Family Law Rule 24 (10). I find that this section is often misinterpreted. The objective of rule 24 (10) was to attempt to keep parties informed about the costs of litigation with every event in order to have parties and lawyers to think carefully about the absolute necessity of any steps taken. I would suggest this was particularly intended to address unnecessary motions and wasted court attendances.

[24] The January 31, 2013 motion was adjourned to February 12, 2013, apparently because the mother served father’s counsel for a motion she unilaterally scheduled and served the motion after hours under the locked reception doo of father’s counsel.

[25] The February 12, 2013 and February 21, 2013 endorsements all reserved costs and all stemmed from the January 31, 2013 motion and may be all considered one step. If we strive to encourage efforts at pre-court settlement efforts, disclosure, avoiding any unnecessary steps, productive attendances including readiness we should note lose sight of work that takes place outside of the courtroom prior to or between “any step” if we are promoting the objectives of the rules, fairness and proportionality. The father at all times acted reasonably, sought to avoid the return to court and gave the mother every opportunity to satisfy the terms of the order.

[26] I find that it would be inconsistent with the Rules’ objectives and the specific costs Rules (18 and 24), and the ever burgeoning and evolving costs cases commencing with Fong v. Chan, 1999 CarswellOnt 3995 (C.A.), Serra v. Serra, 2009 CarswellOnt 2474 (C.A.), Clarington (Municipality) v. Blue Circle Canada Inc, 2009 ONCA 722, Stevens v. Stevens, 2013 ONCA 267, Warsh v. Warsh, 2013 ONSC 1886 to name a few that speak to fairness, reasonableness, access to justice and proportionality as all part of the litmus tests as to entitlement and quantifying costs to deny the costs incurred where the father took reasonable steps to avoid court prior to the return of the matter to the court and the facts of this case.

[27] In this case, I have no difficulty concluding that the father was unequivocally successful, reasonable and credible whereas the mother was not.

[28] In reviewing the Bills of costs submitted two lawyers, an articling student and a law clerk, all worked on this case at the rates of $140 to $265 per hour.

[29] Total hours spent at the highest rate was 87.2 hours and the articling student and law clerk each docketed 28.2 and 25.7 hours respectively.

[30] Disbursements and HST on disbursements totaled approximately $3,700.

[31] While as I have concluded that the father’s counsel did a very thorough and professional job and the hourly rates were reasonable, the amount of billable and chargeable time appears beyond reasonable and a file overworked that largely turned on facts and credibility. To incur legal fees of near $40,000 so to avoid paying $48,000 would on its own be hard to reconcile with the fees but I am mindful that the choice of school was perhaps even a greater consideration for the parties.

[32] While this case had no room for compromise as I find that it would have been inappropriate to offer mother any amount of money or to allow her to choice of school that would have ignored the goal of being closer to where the father already resided and equidistant to each parent’s residence. The issue is whether the law firm could have spent less time to obtain the same result.

[33] I am also mindful of the fact that both parents will have a negative financial impact on finances that may affect the child.

[34] In all the circumstances, I find that mother an order that mother is to pay $25,000 is reasonable and fair. The mother cannot use her financial circumstances whatever they are to shield her from costs given my findings.

[35] She is to repay the father at the rate of $350 per month with this amount set-off against the father’s monthly child support, with the Family Responsibility office being advised, until the costs is satisfied.

[36] The parties are to exchange annually income tax returns and the father may seek a review of the terms of repayment of the costs if he finds that the mother’s situation has improved from her income as disclosed from 2011 forward. He may seek an increase in monthly payments and any additional enforcement based on the disclosure received.

[37] The mother shall be obliged to forthwith advise the father of any change in employment and residence.

Czutrin J.

Released: August 28, 2013