SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-11-72944
DATE: 20150707
RE: ELIZABETH ANNA HNAT – and – MOHINE EL SAYAH
BEFORE: André J.
COUNSEL:
Nida Hussain, for the Applicant
Norman Epstein, for the Respondent
COSTS ENDORSEMENT
[1] On February 27, 2015, I granted Ms. Hnat’s motion for court orders requiring Mr. El Sayah to provide financial disclosure, to set a timetable for questioning and to provide interim spousal support. I denied Mr. El Sayah’s cross-motion for an order to vary the quantum of child support he was paying to Ms. Hnat.
[2] Ms. Hnat’s counsel now seeks costs in the amount of $16,972.03, an amount which her counterpart, Mr. Epstein, dismisses as excessive, unreasonable and unrepresentative of the uncomplicated nature of the motion.
[3] There is no dispute that the following legal principles apply in the decision to award costs:
(a) Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the award of costs are discretionary .
(b) Rule 24 of the Family Court Rules, O.Reg. 114/99 sets out the criteria for a determination of an award of costs to a litigant.
(c) Rule 24(1) indicates that there is a presumption that a successful litigant is entitled to his or her costs.
(d) An award of costs must be fair to the parties and must be reasonable in the circumstances of the matter: Murray v. Murray, 2005 46626 (ONCA), 79 O.R. (3d) 147 (C.A.).
ANALYSIS
[4] In determining the quantum of costs that are fair and reasonable in this matter, I take into consideration the following factors:
Ms. Hnat was substantially successful in this matter. While I refrained from striking Mr. El Sayah’s pleadings as requested, I granted her request for additional financial disclosure, made an order for interim spousal support and denied Mr. El Sayah’s request to vary child support.
While Ms. Hnat was substantially successful, the matter was relatively uncomplicated and did not warrant a great deal of preparation.
While Ms. Hussain’s hourly rate of $275 cannot be considered unreasonable, given that she was called to the Bar in 2009, I find that the amount of time spent in preparing this motion is excessive, given the uncomplicated nature of the issues.
Mr. El Sayah’s action in this motion was unreasonable in that he refused to disclose information which he had agreed to disclose on a previous occasion. Furthermore, Mr. El Sayah’s counsel repeatedly failed to reply to requests for disclosure from Ms. Hussain.
Ms. Hnat made an offer to settle to Mr. El Sayah on September 17, 2014. The offer included disclosure to be provided by Mr. El Sayah, questioning within 90 days of the offer and the payment of interim support, without prejudice, in the amount of $650 monthly. My endorsement of February 27, 2015 equalled, and in the case of spousal support, exceeded Ms. Hnat’s offer to settle.
[5] Based on these considerations, I order that Mr. El Sayah pay costs in the amount of $10,000 inclusive, to Ms. Hnat, within sixty (60) days of today’s date.
André J.
DATE: July 7, 2015
COURT FILE NO.: FS-11-72944
DATE: 20150707
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ELIZABETH ANNA HNAT – and – MOHINE EL SAYAH
BEFORE: André J.
COUNSEL: Nida Hussain, for the Applicant
Norman Epstein, for the Respondent
COSTS ENDORSEMENT
André J.
DATE: July 7, 2015