SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-12-378472
DATE: 2014-07-24

RE: MARLYN RAMOS BOMBITA, Applicant

AND:
ANTOUN TANIAS SALEEB, Respondent

BEFORE: C. Horkins J.

COUNSEL:
David J McGhee, for the applicant

Antoun Tanias Saleeb, acting in person

HEARD at Toronto: in writing

COSTS ENDORSEMENT

[1] The trial in this matter proceeded in February and March 2014 over seven days. The issues of equalization of property, child support and spousal support were determined. The trial of the custody and access issues was bifurcated. These remaining issues are now scheduled to proceed to trial in the fall of 2014.

[2] I released my decision on June 2, 2014. The applicant was successful. The parties have not been able to agree on costs. The applicant has provided detailed costs submissions. The respondent states that because he has appealed the trial decision, the decision on costs should await the outcome of the appeal. This is not the procedure that is followed. Costs must be decided now. My decision on costs forms part of the trial decision. If a party appeals my ruling on costs it will be decided on the single appeal hearing that goes forward.

[3] Rule 24 of Family Law Rules, O. Reg. 114/99 deals with costs. Rule 24(1) states that the successful party is presumed entitled to costs.

[4] Rule 24(11) of Family Law Rules states that in setting the amount of costs the court shall consider the following factors:

(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.

[5] In awarding costs, I must identify an amount that is fair and reasonable in the circumstances. Two decisions from the Court of Appeal emphasize this approach: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291(C.A.) and Moon v. Sher, [2004] O.J. No. 3942 (C.A.).

[6] I have taken the above factors into consideration as follows.

[7] The applicant seeks costs on a full recovery basis. Including HST, this totals $125,091. On a partial indemnity basis it totals $83,394. Disbursements including HST total $6201.96. The disbursements are listed and are fair.

[8] The issues were important to both parties and their one child. The applicant lived in the matrimonial home and supported her daughter with very minimal help from the respondent. The respondent’s financial issues were complicated because of his self-employment and use of monies as described in the reasons for judgment.

[9] The respondent’s conduct is relevant. He took positions at trial that he failed to prove (such as the loans from family and friends and date of separation). Trial time was unreasonably consumed dealing with the date of separation, when the respondent’s own evidence did not support his position. The respondent’s conduct was unreasonable regarding the $101,119.07 that he took from the joint line of credit. He never returned the money and his explanation was ridiculous. In contrast the applicant acted in a responsible and reasonable manner.

[10] The applicant was represented throughout by Mr. McGhee. He was called to the bar in 1981 and his hourly rate is $450. On a partial indemnity basis it is $300. These rates are fair.

[11] Most of the hours represent work done to prepare for trial, attend trial and deal with costs. For example, 85 hours were spent preparing for the trial (approximately 10 days), 67 hours during trial and 25 hours preparing cost submission. No fees are included for events that occurred during the application when costs were dealt with. While the hours seem high they are not outside the boundary of reasonableness. This application started in 2012 and every issue between the parties remained in dispute throughout. The applicant abandoned her claim for spousal support at the outset of trial. This was a fair concession as explained in my reasons. The respondent pursued every argument and won none. The applicant was left to make sense of the respondent’s unaudited financial statements from his business, bank records and credit card statements. This involved considerable work as is apparent from my reasons.

[12] The applicant attempted to settle this dispute at mediation in May 2013. She served three offers but there was no offer open at the start of trial and therefore rule 18(14) is not engaged.

[13] The applicant is entitled to a significant costs award. Taking all of the above into consideration, I award the applicant $83,394 for fees and HST plus disbursements including HST of $6201.96. The total costs award is $89,595.96. This is fair and reasonable. The respondent is ordered to pay these costs forthwith.

C. Horkins J.

Date: July 24, 2014