Court File and Parties
CITATION: Soubra v. De Vasconcelos, 2016 ONSC 1359
COURT FILE NO.: 04-FL-1752-2
DATE: February 24, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mazen Ahmad Soubra, Applicant AND Sandra Olivia De Vasconcelos, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Andrea R. Camacho and S. White for the Applicant Susan Arlitt for the Respondent
HEARD: Written Submissions
Endorsement
[1] Subsequent to the release of my prior endorsement in this matter, counsel requested that I dispose of an unresolved matter relating to the life insurance terms of the separation agreement between the parties.
[2] I am advised that counsel have agreed on terms and on consent there will be an order that the life insurance provisions of the separation agreement dated April 12, 20002 will be amended by deleting paragraph 7 of the agreement and substituting in place thereof the requirement that the applicant will maintain the respondent as the sole irrevocable beneficiary of life insurance having a value of $18,000 until January 31, 2018, at which time the applicant’s obligation to maintain life insurance will terminate and the respondent will execute all reasonable documentation to evidence the termination of her irrevocable beneficiary status.
[3] I will now deal with the issue of costs arising from the hearing of the motion to change.
[4] The applicant was substantially successful on this motion and he obtained greater success at the hearing when compared to his written offer to settle that was delivered a couple of weeks before the hearing.
[5] The applicant had both senior and junior counsel acting on his behalf. Senior counsel, Ms. Camacho, is a family law specialist, called to the bar in 1987, and whose actual rate is $400 per hour. Junior counsel, Ms. White, was called to the bar in 2009 and her actual rate is $270. When senior and junior counsel are both engaged in a particular matter, care must be taken to avoid duplication of effort. In this case, counsel for the applicant chose not to include her actual time dockets with her bill of costs so it is difficult to determine whether or not there were excessive amounts of time spent dealing with particular items or whether there were inefficiencies or duplication of effort. This uncertainty warrants a reduction in the amount awarded.
[6] Also, when senior and junior counsel work together on a case, the practice of claiming the full hourly rate for each lawyer can result in an aggregate amount that exceeds what is reasonable on a party and party assessment. In my view that consideration is present here. I do not criticize the decision of the solicitor with carriage to involve junior counsel but there is a valid question as to the extent to which the opposing party ought to be required to pay for it. I have calculated costs based on an arbitrarily reduced hourly rate for junior counsel of approximately $240 an hour, subject to reduction by 40% to adjust her hourly rate to a partial indemnity rate.
[7] The applicant says his full indemnity costs are $48,000, his substantial indemnity costs are $39,000 and his partial indemnity costs are $28,000. The applicant requests costs of $33,000 which represents his partial indemnity costs calculated to January 7, 2016 and his substantial indemnity costs subsequent to January 7, 2016 for a total of $32,950.34.
[8] The applicant also requests payment of his disbursements in the amount $1,744.94 inclusive of HST. By comparison, counsel for the respondent indicated that the actual costs of the respondent’s legal services was $20,500. The hourly rate for counsel for the respondent is $325 an hour in circumstances where she has approximately the same level of experience as senior counsel for the applicant. It is common that more time is spent on behalf of the moving party than on behalf of the respondent because the moving party initiates the litigation and has the onus of moving the case forward as well as the onus of proof.
[9] It is well established that the determination of an appropriate amount to be paid by one party to another should not simply involve an arithmetical calculation of the time spent and hourly rate of counsel for the winning side. In addition, it is appropriate to consider what the losing side might reasonably have expected to pay. Also, the principle of proportionality is an important aspect of determining costs.
[10] Although the motion was completed in a half day, more time may have been required if the materials had not been thorough and succinct. Also, the oral submissions were focused and efficient. I have considered the factors set out in the Family Law Rules to assist the court in determining a reasonable amount for party and party costs together with the costs outlines delivered on behalf of both the applicant and respondent. I have taken into account that the applicant made a reasonable offer to settle that was not accepted. In the result, I have determined that the respondent shall pay to the applicant an amount for the costs of the motion which is hereby fixed at $27,000, inclusive of disbursements and HST. This amount may be credited against the spousal support arrears payable by the applicant.
The Honourable Mr. Justice James
Date: February 24, 2016
CITATION: Soubra v. De Vasconcelos, 2016 ONSC 1359
COURT FILE NO.: 04-FL-1752-2
DATE: February 24, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Mazen Ahmad Soubra, Applicant AND Sandra Olivia De Vasconcelos, Respondent
BEFORE: Honourable Mr. Justice Martin James
COUNSEL: Andrea R. Camacho and S. White for the Applicant Susan Arlitt for the Respondent
COSTS ENDORSEMENT
James, J.
Released: February 24, 2016