Ganie v. Ganie, 2015 ONSC 2997
CITATION: Ganie v. Ganie, 2015 ONSC 2997
COURT FILE NO.: FS-14-80487-00
DATE: 2015-05-08
CORRECTED: May 21, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BIBI GANIE
Fola Adekusibe, for the Applicant
Applicant
- and -
ROSHAM GANIE
Barbara Barnett, for the Respondent
Respondent
HEARD: December 18, 2014,
at Brampton, Ontario
Price J.
Corrected Costs Endorsement
Correction Notice: On May 21, 2015, the corrected decision was released.
The correction consists of changing the words “Ms. Adekusibe” to “Mr. Adekusibe” in the body of the endorsement.
NATURE OF MOTIONS
[1] Rosham Ganie (“Mr. Ganie”) moved to extend the order of Seppi J. dated October 31, 2014, which gave him temporary sole custody of the parties’ three eldest children, and gave the parties joint custody of their youngest child, based on the report of an assessment by a social worker, Eileen Spraggett, pursuant to section 30 of the Children’s Law Reform Act. While Mr. Ganie’s motion was pending, the Children’s Aid Society of Peel Region released records which, when combined with other statements from collateral sources, support Bibi Ganie’s (“Ms. Ganie’s”) account that Mr. Ganie abused her, physically and emotionally, during their marriage, sometimes in the presence of the children. I released my decision on December 31, 2014, varying the order of Seppi J. and granting temporary sole custody to Ms. Ganie, subject to specified access by Mr. Ganie.
[2] The parties were unable to agree on who should be responsible for the costs of the proceeding, thereby making necessary this further order.
ISSUES
[3] The court must determine who is responsible for the costs of Mr. Ganie’s order, and the amount to be paid.
POSITIONS OF THE PARTIES
[4] Ms. Ganie submits that she was successful in the motion and claims costs on a partial indemnity scale in the amount of $9,163.85 inclusive of fees, H.S.T., and disbursements. Mr. Ganie submits that he was more successful than Ms. Ganie, and claims costs, also on a partial indemnity scale, in the amount of $12,596.03. In the alternative, he argues that success was divided, and that there should be no order for costs.
ANALYSIS
General principles
[5] Boswell J., in George v. Lendels, a civil action, set out the principles governing costs assessments. These principles are equally applicable to family law proceedings. He stated:
The award of costs is governed by section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 provides for the general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs. In addition, the Court must always be mindful of the purposes that costs orders serve. As Perell J. summarized in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (S.C.J.), at para. 10:
Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements (internal citations omitted).
Ultimately, in determining an amount for costs, the overriding principles are fairness and reasonableness.[^1] In assessing what is fair and reasonable in the circumstances, the Court does not engage in a mechanical exercise, but takes a contextual approach, applying the principles and factors discussed above, to settle on a figure that is fair and reasonable in all the circumstances.[^2] [Emphasis added]
Indemnification
[6] In applying its discretion under s. 131 of the Courts of Justice Act,[^3] the Court is guided by the factors set out in Rule 24 of the Family Law Rules.[^4] Rule 24(1) provides: “there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case, or appeal.”
[7] Each of the parties claims success in the outcome of the motion. Ms. Ganie relies on the fact that she was granted interim sole custody. Mr. Ganie submits that he had not sought sole custody and succeeded in obtaining an order that the children remain at the matrimonial home and at the schools in Markham where they were enrolled. In order to determine the parties’ relative success, it is useful to recall the sequence of events that led to the motion.
[8] On October 8, 2013, a teacher at Mr. and Ms. Ganie’s son’s school observed that Ms. Ganie was emotionally distressed and had a red mark on her face that looked like the imprint of a hand caused by a slap to the face. The teacher notified her Vice-Principal, who telephoned Ms. Ganie, who confirmed, when asked, that her husband had slapped her. Mr. Ganie had apparently been angry at his wife for her failure to follow the school’s protocol for the return of their son’s communication folder, which the teacher characterized as a trivial matter.
[9] The Vice-Principal reported the incident to the Children’s Aid Society, who notified the police. The police, after investigating, charged Mr. Ganie with assault. Ms. Ganie later recanted her explanation of her injury, but she then had further discussions with her family doctor and the Children’s Aid Society, and eventually reported to the police that she had been the victim of ongoing domestic violence by her husband.
[10] In consultation with the police, Ms. Ganie, who was six months pregnant at the time, left the matrimonial home in Markham with the parties’ three children on March 17, 2014, and began residing with her sisters. Following Ms. Ganie’s departure from the matrimonial home, the York Regional Police, acting on her complaints, charged Mr. Ganie with eleven offences of domestic violence. The charges were scheduled for a preliminary inquiry in the Ontario Court of Justice in April 2015.
[11] On April 25, 2014, Ms. Ganie began the present proceeding, by application, in which she claimed, among other relief, custody of the children, and a restraining order against Mr. Ganie. Her application and her motion for temporary custody were served on Mr. Ganie on April 30, 2014.
[12] Mr. Ganie delivered his answer and responding material on May 22, 2014. An early case conference was held on May 26, 2014, where Ms. Ganie was granted leave to proceed with her motion. On June 4, 2014, Mr. Ganie delivered a cross-motion in which he sought an order requiring Ms. Ganie to return the children to the matrimonial home or, in the alternative, unsupervised access to the children.
[13] On June 26, 2014, André J. made a temporary and without prejudice order, granting Mr. Ganie access to the three older children every weekend. He further ordered that a social worker, Eileen Spraggett, conduct an assessment under s. 30 of the Children’s Law Reform Act with respect to the Ganie’s children, to be paid for, initially, by Mr. Ganie.
[14] After completing her investigation, Ms. Spraggett met with the parties on August 30, 2014, and issued a 60 page report in which she recommended that Mr. Ganie have sole custody of the three oldest children, subject to access by Ms. Ganie every weekend and Tuesday and Thursday evenings, and that the parties share temporary joint custody of the youngest child, Arick, with access by Mr. Ganie three afternoons per week and on Saturdays.
[15] Ms. Ganie agreed to Ms. Spraggett’s recommendations, without advice from counsel, based on her understanding that Mr. Ganie would be on paternity leave for a year to care for the children, and based on Ms. Spraggett’s advice that if Ms. Ganie “worked with her”, she would recommend that she and Mr. Ganie have joint custody of the children. Counsel agreed that Ms. Ganie’s motion for custody would be heard November 25 or 26, 2014. On November 10, 2014, Ms. Ganie’s motion was adjourned, on consent, to December 4, 2014, and later, to April 2015.
[16] The children remained at the matrimonial home in Markham until October 30, 2014. Ms. Ganie then learned that Mr. Ganie was returning to his employment on November 1, 2014, and she removed the children from his home and from their schools in Markham. In response, Mr. Ganie obtained a temporary emergency order on October 31, 2014, based on Ms. Ganie’s resort to self-help, requiring her to return the children to Mr. Ganie’s home in Markham. Seppi J. stated in her endorsement:
I find this motion has to be heard on the merits on a regular motion day. The matter is adjourned to November 18, 2014, motion court. As a term of the adjournment, it is ordered that the children shall all be forthwith returned to interim custody of the respondent and to the matrimonial home at 42 Foshen Avenue in Markham to remain in attendance at the schools where they were registered as of September 2014. Access in the interim to the applicant shall be as arranged by the parties on a written consent. [Emphasis added]
[17] On November 18, 2014, O’Connor J. made an Order, at Ms. Ganie’s request, for the release of the Peel C.A.S. records. The records were released on December 2, 2014. On December 18, Mr. Ganie delivered a cross-motion seeking an order extending Seppi J.’s order dated October 31, 2014. He relied on Ms. Spraggett’s report and selected excerpts from the C.A.S. records released pursuant to O’Connor J.’s order.
[18] Upon hearing Mr. Ganie’s motion, I found that the excerpts from the C.A.S. records that the parties had tendered, taken as a whole, supported Ms. Ganie assertion that she had endured spousal abuse throughout the marriage, and that on many occasions, the children were witnesses to the abuse.
[19] My order dated December 31, 2014, granted temporary sole custody of all four children to Ms. Ganie. It adjourned the balance of the motions pending a report by the Office of the Children’s Lawyer, with leave to either party, or the O.C.L., to return it following release of the O.C.L. report and, in any event for hearing before August 1, 2015.
[20] Mr. Ganie states that he did not specifically seek sole custody and that he was successful in his request that the children be permitted to continue residing in the matrimonial home and continue attending their schools in Markham. He argues, on that basis, that he was successful in the motion or that success was divided. I do not agree.
[21] The temporary order of Seppi J. awarded temporary sole custody to Mr. Ganie and directed that the children be returned to the matrimonial home pending a hearing of Ms. Ganie’s motion. It was not necessary for Mr. Ganie to bring a motion to extend Justice Seppi’s order solely for the purpose of permitting the children to remain in the home and in their schools. However, Justice Seppi’s order also granted him temporary sole custody of the older three children pending a hearing of Ms. Ganie’s motion. Mr. Ganie sought to pre-empt Ms. Ganie’s motion by extending the order which granted him temporary sole custody, based on Mr. Spraggett’s report. He was unsuccessful in this effort, as I found serious flaws in Ms. Spraggett’s conclusions, requested the involvement of the Children’s Lawyer, and ordered, in the meantime, that Ms. Ganie have temporary custody of the children.
[22] Had my order extended Seppi J.’s order granting him temporary sole custody of the children, and implementing Ms. Spraggett’s recommendations, Mr. Ganie would have justifiably claimed success in the motion. However, Ms. Ganie demonstrated that Ms. Spraggett’s conclusions were flawed, and that her assertions of domestic violence were sufficiently compelling to have her restored to the role of custodial parent on the ground that it was not in the children’s best interest’s to remain in their father’s custody.
[23] In arriving at my decision in the motion, I made the following findings:
a) As a result of Ms. Ganie’s discussions with her family doctor and Children’s Aid Society, she eventually reported to the police that she had been the victim of ongoing domestic violence by her husband. On March 7, 2014, York C.A.S. received a call from P.C. Simard of York Regional Police advising that Ms. Ganie had called the police that evening, advising that there had been other incidents of domestic violence against her.
b) On March 17, 2014, Ms. Ganie, who was then six months pregnant, left the matrimonial home in Markham with her then three children, and moved in with her two sisters in Mississauga. She then reported Mr. Ganie’s past offences to the York Regional Police, the truth of which she later deposed to in her affidavit sworn December 15, 2014, in which she asserted that many of Mr. Ganie’s acts of violence against her occurred in the presence of one or more of their children.
c) Mr. Ganie was released on bail, on terms that prohibited him from having contact with Ms. Ganie except pursuant to a Family Court Order, or in the presence of counsel, for the purpose of family mediation, or for the purpose of making arrangements for contact with the children.
d) In Ms. Ganie’s affidavit sworn April 16, 2014, she stated that, in addition to committing the criminal offences against her, Mr. Ganie had acted inappropriately towards the children when the family lived together in the matrimonial home, including sleeping naked between their son David, who was 6 years old when the parties’ separated, and Aliza, who was 4, spooning towards Aliza and ordering that the light must always be off, insisting that everyone sleep in the same bed, despite there being two other rooms in the house for the two older children, undressing in the presence of the children, having his bath in a glass shower room while the children brushed their teeth in the washroom, insisting that David wear no underwear in the house, and shouting down the children, swearing and cursing at everyone, and saying such things to the children as “I wish none of you were ever born, it was all a mistake, and no pregnancy was planned.”
e) In his affidavit, Mr. Ganie asserted that: he had discovered, before the marriage, that Ms. Ganie was “clinging, fearful, cries easily, hypersensitive, hyper-anxious, and over-protective.” He said that her mood swings were of concern to him and that she was unable to respond to changes and found it difficult to participate in social activities and struggles to resolve simple challenges; that “Unfortunately, whilst in Canada [she] has never accepted my invitations to take personal developmental classes or for us to attend counselling and for her to attempt to deal with these issues.” He further asserted that “it became apparent to me that she may have issues with depression.”
f) Mr. Ganie stated that:
Following the October 2013 allegation the York C.A.S. thoroughly investigated the matter, including interviewing the children and the parties, and did not identify any protection concerns to warrant further involvement. The York C.A.S. file was confirmed closed in November 2013. When the Society was contacted again on March 7, 2014, it was in regards to the children allegedly being exposed to conflict. The only statement from C.A.S. was that the children not be exposed to adult conflict and a recommendation that both parties and the children attend counselling. [Emphasis added]
I found that while the outcome of the charge against Mr. Ganie arising from the October 8, 2013, report by the Vice-Principal at Castlemore School, was unclear, and the evidence suggested that the Crown Attorney’s Office may have withdrawn the charge, Ms. Spraggett’s statement that Mr. Ganie attended and completed the PAR (Partner Assault Response Program), a 12-session program whose aim is “to give offenders the opportunity to examine their beliefs and attitudes towards domestic violence, and to learn non-abusive ways of resolving conflict,” suggested that if the Crown Attorney’s Office withdrew the charge, the withdrawal may have been conditional on completion of the program, and may have been preceded by an acknowledgement of responsibility by Mr. Ganie.
g) While Ms. Ganie later recanted her statement that Mr. Ganie had caused the handprint that David’s teacher had observed, I found that her retraction was the result of her economic and practical dependence on her husband. I found, on a balance of probabilities, that Mr. Ganie did, in fact, assault his wife on October 8, 2014, and that the children’s Vice-Principal, Ms. Purcell, correctly concluded, based on her teachers’ earlier observations of Mr. Ganie’s treatment of Ms. Ganie at parent-teacher meetings, that the assault was the culmination of Mr. Ganie’s domineering conduct towards her.
h) While Ms. Spraggett noted that during her investigation, Mr. Ganie was more successful at enlisting the children’s attention and response to his directions, I concluded that it was difficult to know to what extent Ms. Ganie’s lesser authority with the children was a product of the dominance that Mr. Ganie exercised over her and the domestic abuse they had witnessed her enduring.
i) The evidence supports Ms. Ganie’s concerns both in the aggressiveness that third parties have observed in both David and Aliza, which Ms. Ganie attributes to their witnessing their father’s violence toward her, and in the distractedness and sexualized behaviour that third parties have observed in Aliza, which Ms. Ganie attributes to his inappropriate conduct toward her.
j) While Ms. Spraggett does not connect Ms. Ganie’s allegations of inappropriate conduct by Mr. Ganie toward Aliza with her distractedness and sexualized behaviour, and discounts Ms. Ganie’s perceptiveness and concludes that Mr. Ganie is more attuned to the children’s needs, the court shared the concerns that Ms. Ganie, as well as the children’s Principal and Ms. Theaker, expressed. While Ms. Ganie’s allegations have not been proved, the combination of them and the observations made [by Ms. Spraggett and by Mr. Shabbar, the Principal at Castlemore School, which David and Aliza attended] of Aliza’s unusual and age-inappropriate behaviour requires further investigation and a cautious approach to Mr. Ganie’s custody of the children, and Aliza and David, in particular, until such an investigation takes place. Ms. Spraggett did not inquire into the actions that Ms. Ganie had described during the time the Ganies were together, and until a trained psychologist does so, I concluded that a more cautious approach was required than the one Ms. Spraggett had recommended.
k) I found that Ms. Spraggett’s statement at page 10 of her report that the pattern of Ms. Ganie deferring to her husband about assessing the children’s needs and following up with seeking resources in the community for them continued until they separated must be considered in the light of the observation made by the teachers at Castlemore Public School, who reported that Mr. Ganie “shut his wife down” at parent-teacher meetings and discouraged, or prevented, her from participating. I found that the distress that Mr. Ganie apparently caused his wife over a disagreement over what the teachers regarded as a trivial issue of the communications folder suggested that Mr. Ganie actively maintained and, perhaps, enforced, his dominance in their decision-making regarding the children.
l) While the children’s doctors and dentists had attested to the fact that Mr. Ganie was the more proactive, as between him and his wife, in making appointments for the children and bringing them to their appointments, I found that this may reflect Mr. Ganie’s dominance in their relationship. Ms. Spraggett noted that in August 2014, Ms. Ganie, who had care of Arick, made an appointment for an echocardiogram and followed up with an appointment for the monitoring of his heart function when his doctor detected a heart murmur. Additionally, on September 13, 2014, (approximately two weeks after Labour Day, when the children were returned to Mr. Ganie), when the children arrived at her home for the weekend, Aliza was very sick and coughing uncontrollably, and Ms. Ganie rushed her to see a doctor at Malton Urgent Care Centre, where Dr. Anushi Patgunarajah diagnosed her with a viral infection, and prescribed medication, which Ms. Ganie administered.
m) I found that both parents are equally concerned about the children’s health and while Mr. Ganie tends to be more proactive in this area, as in others, and this can have benefits for the children, weekly visits to the doctor may be excessive and even harmful. I found that the evidence does not support a finding that Ms. Ganie neglected the children’s health.
n) Castlemore Public School reported concerns about David’s and Aliza’s special needs in the areas of speech, language, and social development. Mr. Matt, the Principal at Beckett Farm Public School informed the C.A.S. worker, Ms. Theaker, that the dedicated early childhood education teacher, who was a support teacher in Ariel’s class, confirmed as Ms. Theaker and Mr. Matt were on the phone that Ariel had licked the asphalt outside school and had put bolts in her mouth. He stated, “These are not typical behaviours for a student her age. She will scratch children.” Mr. Matt had brought Aliza to his office more than twice due to her hurting a child. One of the occasions resulted in a scratch on a child’s face that had left a mark. Mr. Matt informed Ms. Theaker that the school had informed Mr. Ganie of the issues with Ariel scratching other children, and of the bolt incident. Mr. Ganie stated that “based on the circumstances she has been through with her mother that she will be fine. With staying in school she will grow out of these things.” Mr. Matt stated, however, that Ariel was not academically where the other children were but that through consistency and being at school full time she may make gains this year.
o) I found that Mr. and Ms. Ganie performed parenting duties on roughly an equal basis before their separation and have spent roughly equal periods since then being primarily responsible for their care. I found that each is capable of acting as a parent.
p) Although the evidence from [the teacher and Vice-Principal at Castlemore School, and the Peel C.A.S. worker, Ms. Theaker, and Ms. Ganie’s parents] can be discounted based on frailties in their relationships with Ms. Ganie and the circumstances in which the information was first provide, I found that there is such consistency in the evidence of Mr. Ganie’s character and personality, and of his domineering attitude toward others that, taken as a whole, it must be given some weight. I found that the account that Ms. Ganie has given of Mr. Ganie having slapped her in anger over her perceived mishandling of the communication folder was consistent with the way the teachers had seen him treat Ms. Ganie at parent-teacher meetings, when he “shut her down and told her not to speak.”
q) I further found that the behavior that the children’s teachers had observed from Mr. Ganie was consistent with the evidence of Ms. Ganie’s parents, who described Mr. Ganie treating his wife like a child and becoming enraged at her for no apparent reason. I further found that the behavior of all of these witnesses was consistent with what was readily apparent to me and to court staff in the courtroom. During the hearing of the parties’ motions, Mr. Ganie was visibly scowling at Ms. Ganie and seeking to maintain eye contact with her. He was so persistent in his efforts to do this that he changed positions when the court officer sat between him and Ms. Ganie in order to prevent him from intimidating her. It was necessary for the court officer to caution him about his conduct, which I found, and stated on the record, was consistent with the domineering behavior that is reflected in the evidence of Ms. Ganie and those whose affidavits she has tendered.
r) I did not share Ms. Spraggett’s interpretation of the information from the York Region C.A.S. as to when Ms. Ganie planned to leave the matrimonial home and whether that information contradicted her statement that she had not “planned” to leave her marriage on March 17, 2014, but decided that morning to leave. I found that Ms. Ganie had indeed planned to leave her marriage, but had delayed doing so during the week of March 11 because of Mr. Ganie’s suspicion that she intended to do so, and his request that his parents delay their departure from the home, and that it was not until March 17, 2014, when her husband was at work, that she was able to enlist the help of the York Regional Police in her effort to leave with the children.
s) I found that Ms. Spraggett may have adopted too uncritically Mr. Ganie’s narrative that his wife’s allegations of domestic violence were a strategy designed to facilitate her claims to custody of the children. This was evident from her comment, at page 46 of her report, that ‘Allegations of domestic violence can be perceived as a powerful tool in custody disputes, often resulting in a tactical advantage for the parent making the allegations. They are hard to dismiss or discount; however, at the same time, until allegations are proven in criminal court, the children’s relationships with their parents need to be protected in the absence of a formal child protection finding.’ I concluded that while it is true that allegations of domestic violence can be invented as a strategy, especially to remove a spouse from the matrimonial home, the evidence in the present case did not support that inference, as Ms. Ganie’s allegations had originated in October 2013, when she acknowledged the assault on her in response to inquiries by the teachers and Vice-Principal of the children’s school, acting on their own observations. Additionally, Ms. Ganie had made her allegations sporadically, and haltingly, as a result of her obvious dependence on her husband. She had made the allegations to those who offered her emotional support, including her parents, the C.A.S., her family doctor, and finally, the police, all apparently preceding legal advice. When she finally made her complaints to the police, it was not for the purpose of removing her husband from the home, but of gaining safe passage from the home for herself and the children.
t) I also did not share Ms. Spraggett’s interpretation of Ms. Ganie’s statement to the York Region C.A.S. that there had not been incidents of conflict between her and her husband since 2013 and that the children had not been exposed to their conflict, which Ms. Spraggett found contradictory to Ms. Ganie’s later reports to the police. I found, on a balance of probability, that the C.A.S. was seeking Ms. Ganie’s assurance that she and, particularly, the children, were not in imminent danger while she waited for an opportunity to leave the home, and that Ms. Ganie, in giving them that assurance, was reflecting the fact that there was no overt violence against her while Mr. Ganie’s parents were visiting, excepting the sexual assault that she later reported occurred on March 8 or 9, 2014, when the children were not present and which did not involve the sort of beatings that she said had occurred before the children’s school and the C.A.S. became involved in October 2013.
[24] My reasons for the order made in the motion concluded:
[181] These [C.A.S.] records, together with information from other sources, including the children’s doctor and Ms. Ganie’s parents, raise grave doubts about the correctness of the assessor’s recommendations, and support a conclusion that Mr. Ganie was indeed violent and abusive towards Ms. Ganie in the presence of the children. They disclose a history of physical assaults by Mr. Ganie on his wife, demeaning language, and domineering conduct that undermined her confidence, marginalized her involvement in the children’s lives, and contributed to aggressive behavior by the children toward their schoolmates.
[187] I find that Mr. Ganie poses a continuing risk of harm to his children and that it is not in the children’s best interests that he continue to have custody of them. I find that his domineering attitude toward Ms. Ganie and his lack of respect for her makes it less likely that he will foster the children’s relationship with her.
[210] I find that Mr. and Ms. Ganie have different competencies in relation to the parenting of their children. I find that Mr. Ganie has shown a more active interest in the children’s schooling and extra-curricular activities and skill development. He has also been abusive towards Ms. Ganie, which undermines his ability to serve as a positive role model for the children. Mr. Ganie’s abuse and, in particular, his undermining behaviour toward Mr. Ganie, impedes the objective of achieving a balance of roles and influence though parallel parenting.
[211] The benefit that the children derive from Mr. Ganie’s competence as a parent, and his active and confident involvement in their academic and extra-curricular life, is off-set by the negative role-model he becomes when he disrespects Ms. Ganie and discourages her equal participation in the children’s lives. This behaviour was evident in the description the teachers at Castlemore Public School gave of his interaction with Ms. Ganie at parent-teacher meetings.
[212] Mr. Ganie may have acted inappropriately toward his daughters, although the evidence does not support a finding that he has sexually assaulted them. His inappropriate behaviour toward them, however, may have had a harmful impact, especially on Aliza, which must be investigated by a psychologist with the necessary expertise.
[213] Mr. Ganie’s domineering behaviour toward his wife would likely impede the objective of achieving a balance of the parents’ roles and influence though parallel parenting.
[214] At the present time, Ms. Ganie’s authority over the children, and her ability to protect them from harm, needs to be strengthened. This can best be done by reposing sole custody in her, subject to the restriction that the children will remain in their present schools unless the parties otherwise agree or obtain a further order from this court on a more complete evidentiary record.
[215] I do not have sufficient confidence in either parent’s commitment to facilitate access to the children by the other parent to grant sole custody to either of them without a specific schedule of access by the other. The order that follows is designed to strengthen Ms. Ganie’s role in relation to the children, while preserving the benefit that Mr. Ganie brings to their lives. Ms. Ganie’s role as the custodial parent will ensure that she will be capable of exercising effective vigilance over the children’s well-being pending the outcome of an investigation by the Office of the Children’s Lawyer.
[216] It remains to be seen whether Mr. Ganie’s respect for his wife can be elevated to the point where the parties can share custodial decision-making. [Emphasis added]
[25] Even in cases of divided success, where success is not divided equally, the more successful litigant is entitled to costs on a partial indemnity scale, absent bad faith or unreasonable behaviour. In Likins v. MacKenzie, Mackinnon J., after noting that there was no unreasonable conduct or bad faith on the part of either party in an appeal, awarded costs to the more successful party, stating:
I have concluded that although success was divided, it was not equally divided. In my view, the Respondent was more successful to an extent that is significant and ought to be reflected in an award of some of her partial recovery costs.[^5]
[26] Based on the order that Mr. Ganie sought, which sought to extend the duration of Seppi J.’s temporary order granting him sole custody, and the outcome, which granted Ms. Ganie temporary sole custody, Ms. Ganie was substantially successful. Having regard to the outcome, and Rule 24(1) of the Family Law Rules, Ms. Ganie is entitled to her costs of the motion.
Amount of Costs
[27] Rule 24(11) of the Family Law Rules directs the court to consider the following factors when determining the amount of costs:
(a) The importance, complexity, or difficulty of the issues;
(b) The reasonableness or unreasonableness of each party’s behavior in the case;
(c) The lawyer’s rates;
(d) The time properly spent on the case, including conversations between the lawyers 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.
Importance and complexity of the motion
[28] The motion was moderately complex. It involved a determination as to custody of, and access to, the four children, with reference to their best interests and the factors set out in s. 24(1) of the Children’s Law Reform Act.[^6]
[29] The motion was important to the litigants as it involved issues of custody and access to their children. Such issues are always of great importance to the parents. As Zisman J. notes in McSwain v. McSwain, “There can be nothing more important to parents than parenting arrangements for their children.”[^7]
[30] The issues were also of importance to the children themselves. Mr. Ganie states that the matter was of great importance to him, as it dealt with the issue of the children maintaining relationships that they had cultivated in Markham, where they attended school and were enrolled in activities.
[31] The motion also involved issues of public interest. The public has an interest in the effect that should be given to allegations of domestic violence in the determination of custody and access arrangements, and what effect, if any, should be given to written and untested reports from police services and children’s aid societies in relation to such determinations.
Reasonableness and offers to settle
[32] The general rule is that costs follow the event and will be awarded on a partial indemnity scale.[^8] In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or unnecessarily run up the costs of the litigation.[^9]
[33] Ms. Ganie submits that in the light of the evidence disclosed by the Children’s Aid Society’s records, which supports her assertions that Mr. Ganie was abusive, has issues with anger, and was violent toward her in the presence of the children, it was not unreasonable for her to contest his claim to sole custody of the children. She argues that it was unreasonable for Mr. Ganie to seek sole custody of the children under these circumstances. I agree. However, neither of the parties asserts that the other’s conduct was so egregious as to justify costs on higher than partial indemnity scale. Additionally, no one has tendered offers to settle that affect the determination of costs. Accordingly, I find no special circumstances that justify depriving Ms. Ganie of her costs or that warrant awarding her costs on a full recovery or substantial indemnity scale.
The lawyer’s hourly rates
[34] In determining the appropriate hourly rates to be assigned to the lawyers involved in the motion, the court follows the approach taken by Aitkin J. in Geographic Resources.[^10] That is, the starting point is the successor of the Costs Grid, namely, the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan editions of the Rules, sets out maximum partial indemnity hourly rates for counsel of various levels of experience.
[35] The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $80.00 for law clerks, $225.00 for lawyers of less than 10 years’ experience, $300.00 for lawyers of between 10 and 20 years’ experience, and $350.00 for lawyers with 20 years’ experience or more.[^11] The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases. Having regard to the complexity of the motion, Mr. Farooq, who was senior counsel at the hearing, is entitled to the maximum hourly rate for a lawyer of between 10 and 20 years’ experience.
[36] The Costs Bulletin, published in 2005, is now dated. Aitkin J. considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group,[^12] but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she elected to use their unadjusted rates. Normally, however, it is appropriate to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005.
[37] Based on the Bank of Canada Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the current (2014) equivalent of the hourly rates in the Costs Bulletin are $93.52 for law clerks, $263.03 for lawyers of under 10 years’ experience, which I would round up to $265, $350.71 for lawyers of between 10 and 20 years’ experience, which I would round down to $350, and $409.16 for lawyers of over 20 years’ experience, which I would round up to $410.
[38] The court is guided by the rates in the Costs Bulletin, not the actual hourly rates charged. The actual rates charged are relevant only as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate.
[39] The court adjusts the hourly rate, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 57.01(1). If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly. As long as the resulting amount does not exceed the amount actually charged to the client, the actual fee that the client agreed to pay is irrelevant.
[40] Ms. Ganie’s lawyer, Fola Adekusibe, was called to the Bar in Lagos in 1989 and to the Ontario Bar in 2003. For the purpose of assessing costs, her relevant experience at the Bar of Lagos should be recognized. Mr. Adekusibe had practiced law for 25 years at the time of the hearing. She was therefore entitled to claim an adjusted maximum of $409.16 per hour, on a partial indemnity scale, for her time by the time of the hearing. She charged an actual rate of $300 and claims an hourly rate of $198 on a partial indemnity scale.
[41] Mr. Adekusibe was entitled to claim $93.52 for a law clerk. She charges an actual rate of $60 per hour for her law student, Moyo Adekusibe, and claims an hourly rate of $39.60 per hour for that student on a partial indemnity scale.
[42] I find the rates charged are reasonable and, in fact, are conservative, having regard to Mr. Adekusibe’s experience.
The time spent on the motion
[43] Mr. Adekusibe spent a total of 40 hours on the motion. Her student spent 1 hour. The motion culminated in a 3 hour hearing ending at 5:30 p.m. on December 18, 2014.[^13] Mr. Adekusibe claims 4 hours for reviewing Mr. Ganie’s motion record, including affidavits and exhibits, 10 hours for reviewing Ms. Spraggett’s report (62 pages), and the C.A.S. records (362 pages), 5.5 hours in meetings with Ms. Ganie and her parent to review Mr. Ganie’s material with them, 6 hours to review the jurisprudence and draft Ms. Ganie’s responding affidavits, 4 hours to review, revise, and commission Ms. Ganie’s affidavits, 4.5 hours to prepare, and 5 hours to attend at the hearing. I find the time spent to be reasonable, especially having regard to the fact that Mr. Adekusibe claims only 5 hours for attending at the hearing which was scheduled to begin at 10 a.m. and which concluded at 5:30 p.m.
[44] At the hourly rates she claims, the value of time Mr. Adekusibe spent on the motion was $7,959.60.
Proportionality and the reasonable expectation of the unsuccessful parties
[45] Mr. Ganie’s counsel, Ms. Barnett, who was called to the Ontario Bar in 2005, spent 22.2 hours preparing material and reviewing Ms. Ganie’s responding affidavits, 3 hours attending at the urgent motion on October 31st, and 8.4 hours preparing and attending at the hearing on December 18, 2014, for a total of 33.6 hours. Her law clerk spent 7.1 hours assisting her with preparation of material, and a further hour preparing the Bill of Costs, for a total of 8.1 hours. In total, Ms. Barnett and her Law Clerk spent a total of 41.7 hours at a cost of $10,878 on a “full recovery” basis, not including H.S.T. or disbursements, compared to the $10,560 on a full recovery basis spent by Ms. Ganie’s counsel and her student.
[46] Ms. Ganie’s costs are not disproportionate to the issues involved, or to the costs that Mr. Ganie incurred for his motion. The costs that Mr. Ganie incurred should have informed his expectation of the costs he would face if he was not successful in seeking to extend Justice Seppi’s temporary order on the strength of Ms. Spraggett’s report.
[47] Based on the foregoing analysis, I find that the costs claimed by Ms. Ganie for her fees, consisting of $8,109.60 on a partial indemnity scale, plus H.S.T., are reasonable and should be allowed as claimed.
Expenses reasonably paid
[48] In fixing costs, the court need not undertake a line by line analysis of the hours or expenses claimed, nor should it second guess the amounts claimed unless they are clearly excessive or overreaching.[^14] Mr. Ganie has not challenged Ms. Ganie’s disbursements of $150, which are modest and consist of the cost of her process server’s services. Mr. Ganie’s disbursements, by comparison, were $268.93 plus H.S.T., and included $135 for his process server.
[49] Ms. Ganie’s disbursements are reasonable, and there is no reason not to allow them in the amount claimed.
CONCLUSION AND ORDER
[21] For the foregoing reasons, it is ordered that:
- Mr. Ganie shall pay to Ms. Ganie her costs of this motion on a partial indemnity scale, in the amount of $9,163.85, consisting of the following:
a) Fees: $7,959.60
b) HST: $1,034.75
c) Disbursements: $150.00
d) H.S.T.: __19.50
TOTAL $9,163.85
Price J.
Released: May 8, 2015
Corrected: May 21, 2015
CITATION: Ganie v. Ganie, 2015 ONSC 2997
COURT FILE NO.: FS-14-80487-00
DATE: 2015-05-08
CORRECTED: May 21, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BIBI GANIE
Applicant
- and –
ROSHAM GANIE
Respondent
COSTS ENDORSEMENT
Price J.
Released: May 8, 2015
Corrected: May 21, 2015
[^1]: 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), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.)
[^2]: George v. Landles, 2012 ONSC 6608, paras. 4 to 6, citing Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflow Ontario) v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC), [2003] O.J. No. 1658, at para. 17
[^3]: Courts of Justice Act, R.S.O. 1990, c. C.43
[^4]: Family Law Rules, O.Reg. 114/99, as amended
[^5]: Likins v. MacKenzie, 2004 15767 (ON SC), para. 11. See also: Boland v. Boland, 2012 ONCJ 239, per Murray J., at para. 2
[^6]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24.
[^7]: McSwain v. McSwain, 2010 ONCJ 539, para. 22
[^8]: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.)
[^9]: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.)
[^10]: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, paras. 7 and 11 to 16
[^11]: “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
[^12]: First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 2012 ONSC 1359 (S.C.J.)
[^13]: From 12:55 p.m. to 1:05 p.m., from 1:30 p.m. to 2:30 p.m., and from 3:44 p.m. to 5:30 p.m.
[^14]: Fazio v. Cusumano 2005 33782 (ON SC), 2005 CarswellOnt 4518 (S.C.J.), at para. 8.