CITATION: Yazdani v. Vuthy, 2015 ONSC 2420
COURT FILE NO.: FC-12-62-0
DATE: 2014/04/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NABIL YAZDANI, Applicant
AND
NIKA VUTHY, Respondent
BEFORE: Kane J.
COUNSEL: Sonya Notturno, counsel for the Applicant
Sierra J. Hubble, counsel for the Respondent
HEARD: By Written Submissions
costs ENDORSEMENT
[1] The applicant and the respondent each seek an award of costs of not less than $30,000. In support thereof, each party relies upon the results obtained and the written offers of settlement, 6 by the applicant and 5 by the respondent.
[2] The applicant states his full legal cost, including his payment of the custody - access assessment by Dr. Worenklein, totals $103,372.
[3] Like the respondent, the applicant had previous legal counsel. Changing counsel increases legal costs.
[4] The applicant’s full legal costs since November 2012 with his present counsel, is $54,454 including reductions of fees charged in 3 of the 9 accounts rendered. That is to be comparable to the respondent’s legal costs with her present counsel of $55,835.
[5] The parties:
(a) Married one another on December 27, 2008;
(b) Had their first child on January 21, 2010;
(c) Had their second child on August 30, 2011;
(d) Separated on January 7, 2012, with the respondent leaving the home with the children;
(e) Became parties to this proceeding commenced by the applicant on January 30, 2012;
(f) Proceeded on October 3, 2013 with the first four days of trial;
(g) Received the psycho-legal assessment of each party’s parenting capacity dated October 13, 2013;
(h) Proceeded with the next seven days of the trial on January 2, 2014; after which the trial was to resume at a future date;
(i) Consented on March 20, 2014, to a final order determining spousal support, child support, equalization of property, police enforcement terms and interim access terms, with custody, access and costs to be determined upon trial completion and decision; and
(j) Consented on September 29, 2014, prior to resuming the trial to a final order as to custody and access, reserving argument and the determination of costs.
[6] The applicant, now 33 years old, has a Bachelor of Science and a Masters Applied Science with an annual income at the time of $112,000. The respondent has a nursing degree, has remained at home since becoming pregnant with the first child and requires a period of retraining and certification if she is to resume her nursing career. At the time of trial, she was unemployed and lived in subsidized housing.
[7] This has been a high conflict family law dispute. Court filings fill two banker boxes. Conflict existed during the marriage and included emotional and physical outbursts, departure for several days by the applicant, threatened separation and inappropriate conduct by each party.
[8] On the evidence presented, both parties are responsible for the high conflict since separation which resulted in the protracted nature and resulting costs of this proceeding. Despite any good intentions, several family members of each party by their actions inflamed the conflict between the parties.
COSTS AND FAMILY LAW RULES, O. REG. 114/99
[9] Costs are the only issue these parties have been unable to resolve. With the able assistance of counsel and the insight provided by the report and testimony of Dr. Worenklein, the parties resolved all other issues through negotiation and by agreement.
[10] Rule 24(1) creates a presumption that costs normally follow success in a case, namely as determined by court order which is not this case as all other issues were settled.
[11] The court’s jurisdiction to determine cost continues notwithstanding settlement of the other issues pursuant to R. 24(1), as permitted pursuant to R. 18(11) and pursuant to the court’s discretion under s. 131 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[12] Like most young, separated adults with children and currently restricted to one income, finances are very tight and made worse by comparatively large legal bills. Those accounts have or will continue to be a major burden to each of the parties for a considerable period of time.
[13] It is interesting that notwithstanding their past difficult history, the parties overcame their animosity sufficiently to permit compromise and settlement of their more serious and extremely difficult issues, leaving costs to be determined.
COSTS OF INTERIM PROCEEDINGS
[14] Costs are to be determined at each step of a proceeding pursuant to R. 24(7).
[15] Pursuant to that rule, the court is required to exclude from an award, legal costs related to previous steps in the proceeding where either an award of costs was granted, refused or is silent on the subject: Islam v. Rahman, 2007 ONCA 622, (2007), 41 R.F.L. (6th) 10, at para. 2.
[16] The court is therefore limited to a consideration of the legal costs related to the preparation for and the portion of the trial conducted, the orders issued on consent and this cost determination.
IMPORTANCE AND COMPLEXITY
[17] The principal issues were custody and access, duration of spousal support and equalization of property with priority in that order.
[18] Custody and access are complex and important issues.
[19] Being the current sole income earner, supporting two separated adults and two children with an adequate but not large salary creates a lot of stress.
[20] The other parent currently without an income and therefore dependent, while caring for two infant children, has equally stressful conditions.
[21] The father’s prior conduct and certain personality traits led to the mother’s allegations and concern regarding his parenting capacity. This court initially shared some of that concern but was assisted as to that issue by the report analysis and testimony of Dr. Worenklein who distinguished between those matters and parenting capacity and expressed confidence as to the applicant’s parenting capacity.
[22] The young age of these children, two years and four and one-half months old at the time of separation, breast feeding, serious food allergies involving the youngest and incidents related thereto complicated the custody and access transition following this separation. The limitations due to these factors delayed the applicant’s wish and his pursuit of equal parenting and equal time with the children.
[23] The above complexities were magnified by the parties’ acrimony and the past conduct of each parent. Each party acted unreasonably in pursuing their priorities and wishes. Both parties and/or their family members, frequently and inappropriately escalated their disputes by refusals to communicate in a timely manner and by their engagement of police and child protection services.
REASONABLENESS LEVEL IN PROCEEDING
[24] With the assistance of counsel, conduct related to the trial was appropriate.
[25] Each party frequently issued offers which led ultimately to settlement of all but this issue. Offers normally evidence flexibility.
LAWYER’S RATES
[26] The hourly rates charged by each lawyer of $275 and $150 respectively, given their 2002 and 2012 year of call, are reasonable.
LAWYER’S HOURS
[27] The dockets of applicant’s counsel total 202 hours, begin in January, 2013, and end September 30, 2013.
[28] The 381 hours of counsel for the respondent are higher. They commence September 4, 2013, one month before the commencement of trial. Counsel assisted the respondent before and during the first four days of the trial but did not attend those hearing dates.
[29] Counsel for the respondent prepared for and attended during the subsequent seven days of trial in January, 2014, and continued acting through to October, 2014, one month following the second final order and preparation of cost submissions.
[30] Respondent’s counsel was obliged in a very short period to familiarize herself with the parties’ personal and litigation history and prepare for the second trial period, including listening to audiotapes of the first four days of the trial.
[31] On balance, the hours docketed are not unreasonable.
EXPENSES
[32] Expenses claimed are appropriate.
SUCCESS LEVEL AND RULE 18 OFFERS
[33] Unaccepted offers complying with R. 18(14), which meet or exceed the order obtained subject to the court’s discretion, have cost consequences.
[34] The offers in this case require comparison to the resolution of the issues as reflected in the two final orders.
[35] Such offers also record the changing position of the parties as to specific issues.
[36] Offers to be relevant as to the cost consequences under R. 18(14), must be:
(a) Unaccepted;
(b) Made seven days prior to the commencement of trial;
(c) Remain unaccepted; and
(d) Meet or exceed the terms of the order obtained.
ALTERNATING WEEKLY RESIDENCE OFFERS
[37] The respondent’s first offer on October 11, 2012, proposed interim terms of spousal and child support as well as access and is not therefore a R. 18(14) offer as to the trial and these two final orders.
[38] The applicant’s first offer dated September 23, 2013, proposed the children commence living alternating weeks with each parent in June and October, 2014, for the older and younger child respectively, who then would have been three and four years old.
[39] The applicant repeated his 2014 commencement of alternating weekly residency of the children in his November 7, 2013, January 13 and August 21, 2014 offers. In addition to those offers being after commencement of the trial, that 2014 commencement result was not achieved as required under R. 18(14).
[40] The applicant on September 22, 2014, after 11 days of trial ending January 11, 2014, offered commencement of weekly alternating residences in September, 2017, with a gradual annual increase commencing in 2014, of consecutive days with him of 4, 5, 6 and then 7 days, starting in September, 2017. The applicant included a term that costs would be argued and determined by the court.
[41] The applicant’s previous offer dated August 21, 2014, seeking a November, 2014 commencement of alternating weekly residence, was subject to the respondent paying him costs of $15,000, or $25,000 after seven days.
[42] The respondent accepted this offer of weekly alternating residence commencing in 2017, the following day, September 23, 2014, with slight amendments, but on the basis each party pay their own legal costs. She amended that cost term by an amended offer on September 25, 2014, offering alternatively that each party pay their own costs or cost entitlement be argued. The applicant accepted this amended offer the same day and elected to argue cost entitlement.
[43] The respondent in her July 11, 2014 offer proposed the children be with their father from Friday to Monday morning, every second weekend, one week of summer holidays, alternating March Break week and 15 overnights on the applicant’s specified religious holidays plus a sharing of other holidays.
[44] The respondent on September 15, 2014, offered to increase the length of the father’s alternate weekends from three overnights starting then, to four overnights, commencing May of 2015. She made no future commitment to increase that to alternating weekly residence.
[45] In summary, the applicant maintained his 2014 commencement of alternating weekly residence until he proposed the 2017 commencement on September 22, 2014, which the respondent, subject to costs, accepted the following day. Neither party on this central issue offered the 2017 commencement of alternating weekly residence before the start of trial. Neither had such an unaccepted offer on the date of the final order as required to attract cost consequences under R. 18(14).
[46] In the court’s opinion, the applicant’s 2014 alternating week objective, given the age of the children, the food allergy condition of the youngest child and the past food testing issues, transitioned too quickly, too young and was too aggressive in light of the recommendations of Dr. Worenklein that the principal residence then should be with the mother and movement towards a joint custodial arrangement occur once his recommendations were in place and when the children attained school age.
[47] The respondent’s willingness to accept and move towards meaningful increased access and commitment to a future start date of alternating weekly residence was too slow, especially after receipt of Dr. Worenklein’s September 16, 2013 report and the father’s anger management course results.
SPOUSAL SUPPORT AND PROPERTY EQUALIZATION
[48] These two issues and the present cost issue became intertwined. The applicant conditioned his offers thereon to recovery of money from the respondent’s equalization payment he owed to her.
[49] The applicant offered monthly spousal support of $1,500 in September and November, 2013, and January, 2014, but to terminate in January, 2015.
[50] On March 5, 2014, the respondent offered $1,500 with termination effective January, 2018.
[51] The parties compromised and consented to a March 20, 2014 order of $1,203 per month with a termination in September, 2017. That result was not met or bettered by offers of either party.
[52] The applicant’s cut off on January, 2015 was too aggressive given the length of time the mother had been out of the workforce, the retraining in nursing she would require and the young age of the children. He agreed to a more reasonable termination date. The respondent compromised with a lower amount in return for a longer period.
[53] The parties purchased a home upon their return to Ottawa. The respondent had not been and was not expected to be employed shortly thereafter. The house was registered in the applicant’s name only.
[54] The parties purchased a new vehicle before leaving California which resulted in a car loan.
[55] As part of their equalization, the applicant wanted to retain the house and car. The combined net value of those assets was disputed.
[56] In the same above offers involving spousal support, the applicant also offered a net equalization payment to the respondent which he tied to costs payable by her as follows:
(a) September 23, 2013 - $8,400 with each party to pay their own costs, but less $3,000 costs if accepted after three days;
(b) September 26, 2013 - $8,400 with each party to pay their own costs, but less $3,000 if accepted after one day;
(c) November 7, 2013 - $11,661, less $5,000 costs for a net of $6,661, with such costs to increase to $12,000 upon the start of trial continuance; and
(d) January 13, 2014 - $21,800, less costs of $9,000 for a net of $12,800, which costs would increase to $18,000 upon the start of trial continuance.
[57] The respondent on March 5, 2014, offered to accept the equalization of $21,800, spousal support of $1,500 until January 1, 2018, and terms of custody and access, with each party to pay their own costs, or alternatively to be argued and decided by the court.
[58] On March 20, 2014, the parties consented to the first final order which provides for a net equalization payment of $21,800, final spousal and child support, interim terms of access, with custody, access and costs adjourned to a further settlement conference.
[59] The parties continued to exchange offers on the subject of shared time with the children. The applicant’s offer thereon, dated August 21, 2014, requires the respondent pay him costs of $15,000, or $25,000 after seven days.
[60] The applicant’s September 22, 2014 offer concedes for the first time that commencement of weekly alternating residence will only start in 2017. He withdraws his previous insistence that a minimum of $15,000 costs be paid to him and instead for the first time, offers to argue cost entitlement.
[61] The respondent accepted weekly alternating residences commencing in 2017, the following day, with each party to pay their own costs. She expanded that cost provision two days later to include an alternative cost provision in which costs may be argued which the applicant immediately accepts.
[62] The parties consented to the second order four days later.
[63] The applicant continued until late September, 2014, his pursuit of equalization liability, termination date of spousal support and commencement date of weekly alternating access.
[64] The applicant achieved none of his original positions on the above subjects, complains that the length of negotiations increased his legal costs and was unsuccessful in convincing the respondent to contribute towards his increasing amounts of legal fees.
[65] Neither party can now blame the other as solely, or more responsible for the length and legal cost of negotiations. The respondent held back too long in conceding a commencement date of weekly access. The applicant was too aggressive on that and other issues. Rule 18 is of no assistance to either party.
[66] The above examination of issues and the parties’ original and changing issues thereon compared to the results obtained after ten days of trial and subsequent offers indicate divided success by each party.
[67] The above results, combined with the misconduct of each party, lead this court to conclude that each party’s request for cost is dismissed. There will be no order as to costs.
Kane J.
Released: April 20, 2015
CITATION: Yazdani v. Vuthy, 2015 ONSC 2420
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: NABIL YAZDANI, Applicant
AND
NIKA VUTHY, Respondent
BEFORE: Kane J.
COUNSEL: Sonya Notturno, counsel for the Applicant
Sierra J. Hubble, counsel for the Respondent
COSTS ENDORSEMENT
Kane J.
Released: April 20, 2015