ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
NEWMARKET COURT FILE NO.: FC-14-45666-00
DATE: 2015-09-30
BETWEEN:
Farhad Shahami
Applicant
– and –
Zahra Hashemi-Hefzabad
Respondent
Thora H. Espinet, Counsel for the Applicant
Hossein Niroomand, Counsel for the Respondent
HEARD: August 12, 2015
RULING ON COSTS
JARVIS J.
[1] On August 26, 2015 the court released its Ruling on a Motion by the husband that initially involved 14 different heads of relief, only four of which were actually argued, the balance being dismissed on a without prejudice basis. This Ruling deals with the costs of that Motion.
Husband’s Position
[2] The husband requests an all-inclusive costs award of $45,000. Two Bills of Costs are presented, the first dealing with legal fees and disbursements incurred by the husband leading up to, and resulting in, an Order made by McGee J. in these proceedings on January 28, 2015 in the amount of $15,526.20, inclusive of disbursements and HST, and the second for the period from and after January 30, 2015 to and including the date on which the husband’s Motion was argued on August 12, 2015, in the amount of $23,819.10 also inclusive of disbursements and HST. The Order of McGee J. did not deal with the issue of costs. While some of the evidence supporting the husband’s Motion narrated events which pre-dated McGee J.’s Order, the Motion before me, and the evidence on which the husband was relying for most of the relief being claimed, arose as a consequence of that Order and so, for the purposes of this Ruling, only the costs claimed from and after January 30, 2015 will be considered. No view is expressed as to the propriety, or merits, of the husband’s claim for costs pre-dating January 28, 2015.
[3] Comprising the husband’s $23,819.10 claim are legal fees ($20,485), disbursements ($595) and HST ($2,739.10). As already noted, only four of the husband’s temporary relief claims were argued and, of those, two (dealing with lodging the child’s Passport and travel documentation with the court and the wife’s obligation to respond to the husband’s Request for Information) took little time to address. Most of the Motion involved the child’s parenting and directions with respect to sale of the matrimonial home.
[4] While there is no dockets breakdown presented by the husband’s counsel, there is a summary of time spent, some of the details of which indicate the following:
(a) 21 hours were spent in dealing with the husband and preparing the husband’s Motion material;
(b) Seven hours were recorded for legal research dealing with occupation rent;
(c) Six hours were spent dealing with correspondence, telephone discussions with the client and opposing counsel.
[5] In seeking an award of costs on a “substantial indemnity” basis the husband submitted that the wife had demonstrated a pattern of disobedience of the spirit and intent of earlier Orders made by the court, prejudicing his financial interests and resulting in unnecessary costs being incurred. In particular, the husband relied on Family Law Rule 24 (8) that prescribes full recovery costs where a party has acted in bad faith, alleging that in the circumstances of this case, the record amply evidenced the wife’s failure and/or refusal to comply with earlier Orders of the court, additionally compounding the parties’ dispute by baseless allegations.
Wife’s Position
[6] The wife claimed costs, also on a substantial indemnity basis, in the amount of $4,044.80 inclusive of disbursements and HST. She argued that not only were the costs claimed by the husband disproportionately excessive for a one hour Motion but also that most of the costs that the husband had incurred related to matters that were not, in the end, addressed by the court, or were not temporary relief matters and (in at least one instance) beyond the court’s jurisdiction. Alternatively, the wife submitted that any costs of the Motion should follow the event after trial.
Analysis
[7] Family Law Rule 24 deals with costs, and those provisions of the Rule relevant to this Motion are subrules (1), (5), (8), (10) and (11) which provide as follows:
(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
(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.
[8] Family Law Rule 18 deals with Offers to Settle. Since neither party delivered an offer in advance of the Motion, the provisions of this Rule are not engaged.[^1] The absence of offers does not, however, deprive the court of its discretion to fix costs that are reasonable and proportionate.
[9] Determining the amount of costs is not simply a mechanical exercise. The governing principle is reasonableness. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher et al. v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, 48 C.P.C. (5th) C.A.
[10] In this case, the husband was successful with respect to much of the relief that he claimed relating to the sale of the matrimonial home and the involvement of the OCL. The wife’s evidence in many respects was either not credible or was materially deficient in responding to the husband’s allegations. Even so, the husband’s Motion was too broadly framed and well beyond the time constraints for short Motions. Some of the relief, such as occupation rent, and adjustments to child support payable and owing as a result of neither parties’ compliance with the earlier Orders of the court, could not realistically be addressed in the time available. It is noteworthy that the husband only brought himself into compliance with the outstanding child support Order shortly before his Motion was heard.
[11] Family law litigants are responsible, and accountable, for the positions they take in a litigation: Heuss v. Sarkos, 2004 ONCJ 141, 2004 CarswellOnt 3317, and Peers v. Poupore, 2008 ONCJ 615, 2008 O.N.C.J. 615 () (Ont. Ct.), para. 62.
[12] There is no question that, insofar as the issues involving the child and sale of the home are concerned, the wife has acted in bad faith. While the court views the husband’s fees as excessive for what was, and should have been in any event, a one hour Motion not only is he entitled to a reasonable amount for his costs but the wife should be held accountable, as a message to her and others who choose to undermine Orders of the court, that there are consequences to a party’s litigation conduct.
[13] Accordingly, and for the reasons expressed, the wife shall pay to the husband costs of his Motion fixed and payable in the amount of $8,000 inclusive of disbursements and HST, $4,000 of which shall be paid within 60 days of the date of release of this Ruling and the balance within 120 days from today’s date.
[14] The husband’s Offer to Settle dated September 3, 2015 and filed at Tab 5 G of Volume 2 of the Continuing Record shall be expunged from the Continuing Record.
Justice D.A. Jarvis
Released: September 30, 2015
[^1]: In his costs submissions the husband included a comprehensive Offer dated September 3, 2015 to settle all issues between the parties. This is not relevant to the costs of his Motion, and was not considered in making this Ruling.