Superior Court of Justice - Ontario
Court File No.: FC-08-776-1
Date: 20140811
RE: Corie Seed, Applicant
AND
Ebrahim Desai, Respondent
BEFORE: Madam Justice J. Mackinnon
COUNSEL: Peter F. Burnet, Counsel for the Applicant
D. Larry Segal, Counsel for the Respondent
HEARD: by written submissions
COSTS ENDORSEMENT
[1] Both parties are seeking costs following the trial of this case. The applicant seeks costs on a full indemnity basis. The respondent seeks costs on a partial indemnity basis, or in the alternative, no costs, on the basis of divided success. The trial took 13 days. The issues were competing claims for sole custody, whether the residential arrangement for the children should be changed, and determination of the respondent’s income, child and spousal support, including retroactive claims.
[2] The applicant succeeded in obtaining sole custody of the children and in defeating the respondent’s claim for equally shared residential time with the children. Some ‘tweaks’ were made to the living arrangements. By and large these were more favourable to the respondent than to the applicant. The court determined the respondent’s income to be higher than disclosed by his income tax returns, and awarded the applicant child and spousal support; including a retroactive amount of almost $140,000. The respondent’s hardship claim was dismissed.
[3] The respondent maintains success was divided based on findings made such as that the applicant had not fulfilled her obligations to have the children telephone him; that transitions of the children did not require supervision; and that the parties had come to an agreement in November 2010 for spousal support to be paid subject to a review in March 2012. I do not agree that a favourable finding of fact translates into divided success at trial. By way of example, I made many findings of fact in reaching the conclusion that the applicant should have sole custody of the children. She is regarded as successful on the issue of custody, not on each favourable finding of fact that contributed to that outcome. Similarly, I did find that the applicant had been underemployed, but that finding was in relation to the issue of spousal support, on which she was successful at trial. The finding of underemployment does not amount to divided success. I awarded the applicant arrears in support in a significantly lower amount than she claimed. However, the respondent disputed entitlement to any retroactive amount. That the applicant received less than she claimed does not mean the respondent achieved divided success on the issue.
[4] The respondent says success was divided on the issue of the children’s residential arrangements. This submission overlooks the fact that he failed in his claim for equal residential time with the children. It is correct that he was successful on two matters which had been problematic touching on his access to the children; telephone access, and transitioning the children. Several of the other individual changes made to the living arrangements were for the purpose of clarifying the previous order. I regard these as neutral between the parents. In my view, the respondent cannot claim that some favourable adjustments to his access, which remained largely unchanged following trial, amount to divided success on the issue of residential custody. It is not appropriate to apportion costs with a fine tooth comb. That said, conduct issues may arise from individual findings of fact and may be relevant to the quantum of costs.
[5] I find the applicant was the successful party at trial.
[6] Both parties delivered offers to settle before trial. Neither offer attracts the consequences of Family Law Rule 18(14). The applicant’s offer was closer to the final order made on the issues of custody and access. The respondent’s offer was more realistic than the applicant’s on the issue of spousal support. The applicant’s offer was more favourable to the respondent on child support. The respondent was some $100,000 short of the mark on the retroactive award. The respondent made an earlier offer, which was revoked before trial, relating only to custody and access issues. This offer was for joint custody and divided the children’s residential time equally between the parents. I disagree with the respondent’s description of this offer as providing the applicant sole custody and only tweaking the residential arrangements.
[7] Both parties make numerous submissions of unreasonable litigation conduct against the other. The respondent submits the applicant caused unnecessary delays. I agree that the applicant ought not to have commenced this matter by serving a notice of case conference. Inexplicably the case was actually placed on a trial assignment court list in the absence of any pleadings being delivered. The oversight had been brought to her attention by respondent’s counsel, but was not addressed. This did result in a delay of the trial.
[8] A further subsequent adjournment of the trial was granted at the applicant’s request. The respondent also notes that the applicant was late in complying with various due dates as ordered by the court. The applicant changed counsel a number of times, and this also resulted in delays and some duplication of effort by the respondent’s lawyer as each new lawyer became familiar with the case.
[9] The applicant was found to have breached the provisions of telephone access frequently. Although not unlawful, she insisted on having a third party handle the transitions of the children to and from the respondent, which the court found not to be necessary in future.
[10] The applicant responds that the case could not be reached at one trial sitting because respondent’s counsel was occupied in another trial. Another adjournment of trial was obtained because of the respondent’s late coming financial disclosure. Further, the applicant disputes that the delay troubled the respondent since he had tried to obtain an adjournment to a date after the November dates when the trial actually did proceed.
[11] The applicant submits that the respondent’s litigation conduct warrants sanction. The court found he had been disrespectful to the applicant, violated the court ordered email restrictions egregiously, made unfounded allegations of parental alienation and failed to produce his CRA reassessment notices until shortly before trial. I found he had made it extremely difficult for the court to determine his income. Whereas it is his obligation to establish his income, he did not take steps available to him to bring clarity to this important issue.
[12] The Bill of Costs submitted by the applicant totals $162,559.62 covering the period from late 2011 forward. The Bill of Costs submitted by the respondent totals $245,291.36, covering the period from January 2011 forward. About $42,000 of that was incurred in 2011, making the figure of $203,000 a more appropriate one for purposes of comparison.
[13] My conclusion is that the applicant is entitled to generous partial recovery costs. I do not award full recovery costs given the irregular commencement of the proceedings, the delay that occasioned, and given her offer was not as or more favourable than the final order made. Other than the breach of the telephone access I put little weight on her conduct as a factor warranting a downward adjustment of costs. The respondent’s insistence on pursuing unfounded allegations of parental alienation and his flagrant breach of the email restriction contained in the prior order warrant costs sanctions. So also does the approach he took to his income determination.
[14] For all of these reasons I fix the applicant’s costs at $130,000 inclusive of fees, disbursements and HST.
Madam Justice J. Mackinnon
Date: August 11, 2014
COURT FILE NO.: FC-08-776-1
DATE: 20140811
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Corie Seed, Applicant
AND
Ebrahim Desai, Respondent
BEFORE: Madam Justice J. Mackinnon
COUNSEL: Peter F. Burnet, for the Applicant
D. Larry Segal, for the Respondent
COSTS ENDORSEMENT
J. Mackinnon J.
Released: August 11, 2014