Court File and Parties

CITATION: Ehiobu v. Buchanan, 2016 ONSC 1819

COURT FILE NO.: F1339/15

DATE: March 15, 2016

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Rita Uzoma Ehiobu, applicant

AND:

Andrae St. Patrick Buchanan and Erica Ehikwe, respondents

BEFORE: MITROW J.

COUNSEL: Alexandra Kirschbaum for Rita Uzoma Ehiobu

Hamoody Hassan and Sharon E. Hassan for Andrae St. Patrick Buchanan

Erica Ehikwe not appearing

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] Pursuant to my endorsement released December 9, 2015 (see Ehiobu v. Buchanan, 2015 ONSC 7626), written costs submissions were invited, the last of which was the applicant’s reply submissions dated January 27, 2016.

[2] The motions before me were hotly contested as between the applicant, Ms. Ehiobu (maternal aunt), and the respondent, Mr. Buchanan (father). The child, who was the subject of the motion, sustained multiple stab wounds in October 2015; the child was age 6 at the time; the respondent mother, Erica Ehikwe, was criminally charged as a result of the child’s injuries and during the hearing of the motions, the mother remained incarcerated and did not participate other than signing an affidavit.

[3] Mr. Buchanan had not seen the child for several years; after learning of the child’s injuries, he immediately travelled from his home in Milton to London, where the child was hospitalized. Ms. Ehiobu, who resides in London, and members of her family, were also at the hospital.

[4] The child, after emergency surgery, convalesced and recovered from her physical injuries.

[5] The most substantial issue was the interim primary care of the child. Both parties (and unless otherwise specified, “parties” mean Ms. Ehiobu and Mr. Buchanan) sought interim sole custody; Ms. Ehiobu’s motion included a claim for supervised access to Mr. Buchanan and the right to make medical decisions for the child; in turn, Mr. Buchanan’s motion included claims for restraining orders, and that there be access between the child and Ms. Ehiobu.

[6] The applicant seeks costs of $18,544.33 inclusive of HST and disbursements; Mr. Buchanan submits that there should be no costs payable by either party, or that costs should be reserved to the trial judge. I am not prepared to reserve costs to the trial judge. A judge who hears a motion is in the best position to determine costs. In Talbot v. Talbot, 2016 ONSC 1351 (S.C.J.), L. Templeton J., in a careful and well-reasoned analysis, examined the difficulties and pitfalls that can result when a trial judge (or, as in Talbot, a judge who makes a final order on consent without a trial) is required to deal with costs of steps in a case when that judge did not preside over those steps.

[7] On the main issues, the order made on the motions provided that Mr. Buchanan and Ms. Ehiobu have interim care and control of the child while the child is in his or her care. Mr. Buchanan was awarded alternating weekends, plus one weekday each week, and the order provided for expansion of weekend access plus access during Christmas and March break; the child was to be in Ms. Ehiobu’s care all other times; the child’s principal place of residence was not to be changed from London, and Ms. Ehiobu was the party responsible for the child’s medical care.

[8] Clearly there was divided success. Mr. Buchanan achieved a reasonable amount of time with the child, while Ms. Ehiobu was successful on the issue of primary care, with the child living in London rather than living in Milton with Mr. Buchanan, as he had proposed. However, this is not a case where the divided success should result in no costs being awarded. I find that the most substantive issue was the primary care of the child. Ms. Ehiobu was successful on that issue.

[9] I find that Ms. Ehiobu was more successful than the respondent, and that she is presumptively entitled to costs; however, any costs award must take into account Ms. Ehiobu’s lack of success in restricting Mr. Buchanan’s access, as she had proposed, and that Mr. Buchanan was successful on the access issue.

[10] Each party served one offer; both parties made reasonable attempts in their respective offers to resolve the motions. I do agree with Mr. Buchanan that Ms. Ehiobu’s offer does not engage the “automatic” cost consequences of r. 18(14): the offer was not served in time and, more importantly, the offer was not as favourable, or more favourable, than the order, especially on the issue of Mr. Buchanan’s time with the child. However, I still can, and do, consider the offer pursuant to r. 18(16).

[11] I consider the factors in r. 24(11). This case was very important but, in my view, not complex. The child had lived in London with the mother for a number of years, and had had regular contact with Ms. Ehiobu and the extended maternal family. While Mr. Buchanan was entitled to pursue interim custody, he was aware of the undisputed fact that he had had no relationship with the child for several years and, further, that the child had suffered a very traumatic event, which more likely than not would militate against a move to Milton, at least in the short term.

[12] I must consider each party’s behaviour. While, on the one hand, both parties were well motivated in stepping forward in the child’s best interests, and being there for the child, I do find that each party engaged in some unreasonable conduct. Ms. Ehiobu maintained a hostile attitude toward Mr. Buchanan and his family. She also attempted to control who could visit with the child in the hospital during Mr. Buchanan’s court-ordered time with the child, even though the court order gave no such authority to Ms. Ehiobu. Also, Ms. Ehiobu started the case with an ex parte motion, with incomplete and misleading affidavit material, and in circumstances where it was quite inappropriate to move ex parte; the fact that she was self-represented at that time does not excuse, in the least, her behaviour. For his part, it was unreasonable for Mr. Buchanan, when he arrived at the hospital, to take control of the child’s medical care away from Ms. Ehiobu by relying on a 2011 order awarding joint custody of the child to himself and the mother, in circumstances where he had had no relationship with the child for several years. Both parties, to some extent, engaged in a power struggle, especially at the hospital, to the detriment of the child’s best interests.

[13] In relation to the lawyers’ rates, there is a significant disparity, primarily because of the substantial difference in seniority. Mr. Hassan and Ms. Hassan’s actual hourly rates of $425 and $375, respectively, are reasonable, being called in 1979 and 1993. Ms. Kirschbaum’s year of call was 2013, and some of the lawyers who assisted her had calls ranging from 2010 to 2014. The hourly rates charged ranged from $130 to $138. I do agree with Ms. Kirschbaum that these rates are very modest and below market rate. However, despite Ms. Kirschbaum’s submission, I am not prepared to use higher rates than the actual rates charged. In Moon v. Sher, 2004 CanLII 39005 (ON CA), 2004 CarswellOnt 4702 (Ont. C.A.), the Court of Appeal for Ontario stated at para. 42:

42 There is another factor that has an effect on fixing costs that it appears the motion judge was not asked to consider and which I mention to underscore its significance in the cost fixing exercise. I refer to the rate that was, or will be, charged to the client for the services of the lawyers, law students and law clerks who worked on the case. As this court has held, to avoid a windfall it is not appropriate for a party to seek or receive an award of costs in excess of the fees and disbursements actually charged to it. Therefore, the hourly billing rates actually charged and the fees actually billed to the successful litigant are relevant considerations: TransCanada Pipelines Ltd. v. Potter Station Power Limited Partnership (2003), 2003 CanLII 32897 (ON CA), 172 O.A.C. 379 (C.A.) at para. 3; Stellarbridge, supra, at paras. 93-100.

[14] While I recognize the fine work done by all counsel, the emergent nature of the motions, and that affidavit material had to be put together on short notice, with substantial time pressures, I find still that the time spent was excessive for both parties. In para. 6, I stated in part:

6 On the hearing of the motions, exclusive of the form 35.1 affidavits, there were over 30 affidavits filed on behalf of the applicant and Mr. Buchanan. Each party mustered many affidavits from immediate family, extended family and friends. This included substantial “cheerleader” evidence. …

[15] Further, a number of the affidavits, filed by both parties, were far too long and included facts that were neither relevant, nor of assistance, to the court.

[16] Ms. Ehiobu’s lawyers docketed a little over 100 hours, plus 10.4 hours for costs submissions; the costs sought by Ms. Ehiobu represent full indemnity for the actual costs incurred by Ms. Ehiobu. The respondent’s costs outline shows actual fees, disbursements and HST of a little over $61,200. The time spent by the lawyers is a little over 120 hours; time dockets for the articling student and clerks add another 73 hours.

[17] In dealing with costs, the overriding principle is reasonableness, and in awarding costs, the court, rather than engaging in a purely mathematical exercise, must reflect on what the court views is a reasonable amount that should be paid by the unsuccessful party, rather than the actual costs of the successful party: Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.) at para. 52.

[18] Considering the foregoing, including the unreasonable behaviour of both parties, I find it is reasonable that Mr. Buchanan should pay to Ms. Ehiobu her costs of the motions fixed at $7,000 inclusive of HST and disbursements, and payable within 30 days. So ordered.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: March 15, 2016