Ganie v. Ganie, 2016 ONSC 1831

CITATION: Ganie v. Ganie, 2016 ONSC 1831

COURT FILE NO.: FS-14-80487-00

DATE: 2016-03-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BIBI GANIE

Applicant

• and -

ROSHAM GANIE

Respondent

Counsel:

Fola Adekusibe, for the Applicant

Brian Ludmer, for the Respondent

HEARD: September 18, 2015, at Brampton, Ontario

Price J.

Costs Endorsement

NATURE OF MOTIONS

1The applicant, Bibi Ganie (“Ms. Ganie”) made a motion to vary the court’s temporary order dated December 31, 2014, which granted Mr. Ganie access to the parties’ two older children every week during the week, pending completion of a clinical investigation by the Office of the Children’s Lawyer. The order was made to enable the children to complete their school year at schools in Markham, where they had been enrolled since September 2014. The order additionally granted Mr. Ganie access to the youngest child for two uninterrupted weeks during the summer. The O.C.L. completed its investigation, recommending that the children be moved to a school close to Ms. Ganie’s residence and postponing Mr. Ganie’s two weeks of uninterrupted access to the youngest child until the child was three years of age. Ms. Ganie sought an order implementing those recommendations.

2The motion was scheduled to be heard on September 15, 2015, but was adjourned at the request of Mr. Ganie to September 18, 2015, to accommodate his counsel, as September 15th was a Jewish holy day. Mr. Ganie thereupon made a cross-motion to adjourn any change until the trial. He served a 31 page affidavit of his own with 178 pages of exhibits, including affidavits from four others. On the return of the motions on September 18, 2015, Mr. Ganie opposed a request by Ms. Ganie to file a responding affidavit. The court denied Ms. Ganie’s request and heard the motion that day.

3After hearing argument, the court concluded that its December 31, 2014, order should be changed. It ordered that the older two children would move to a school close to Ms. Ganie’s residence, and that Mr. Ganie’s two weeks of uninterrupted access to the youngest child would be postponed until 2017, for the following reasons:

a) Ms. Ganie did not need to prove a material change in circumstances, as the court’s December 31, 2014, order was a temporary “without prejudice” order, in contemplation of the Children’s Lawyer’s investigation, which was now completed;

b) The Children’s Lawyer’s investigation was sufficiently thorough that it could be acted upon pending the trial;

c) It was in the best interests of the older children that they be moved to a school close to Ms. Ganie’s residence, as postponing the change until trial would likely worsen the negative impact that the status quo was having on them as a result of their separation from Mr. Ganie and Mr. Ganie and his parents’ demeaning comments, which risked alienating the children from their mother.

d) The youngest child, who was born June 19, 2014, was still too young to be separated from his mother for an extended period.

4The parties were unable to agree on who should be responsible for the costs of the motion, and on the amount of the costs. This endorsement addresses those issues.

ISSUES

5The court must determine if one of the parties should pay the other’s costs of the motion and, if so, the amount of costs to be paid.

POSITIONS OF THE PARTIES

6Ms. Ganie claims her costs on a partial indemnity scale in the amount of $7,886.73, consisting of $6,791.40 for fees, $883 for HST, $187.90 for disbursements, and $24.43 for HST on disbursements. She relies on her success in her motion, and argues that Mr. Ganie acted unreasonably by delivering his cross-motion with voluminous supporting material on the eve of the hearing.

7Mr. Ganie relies on the fact that Ms. Ganie’s counsel was retained on a Legal Aid Certificate, and is subject to a maximum Legal Aid billable rate of $129.93 per hour, which translates to a total cost of $4,456.59. Mr. Ganie argues that Ms. Ganie should therefore be restricted to recovering her costs at a partial indemnity scale, at half that amount, being $2,228.20, less her costs of the September 15, 2015, attendance, which she caused by failing to consult his counsel before scheduling the hearing. Alternatively, Mr. Ganie argues that the costs of the motions should be reserved to the trial judge.

ANALYSIS AND LAW

a) Deferring costs to the trial judge

8Mr. Ganie argues that the issue of costs should be reserved to the trial judge. I am mindful of Rule 24(10) of the Family Law Rules, which requires that the costs be decided at each step in the case. I am in as good a position as the trial judge will be to determine the costs based on the outcome of the motions and the reasonableness of the parties. I have therefore concluded that the issue of costs should not be reserved to the trial judge.

b) General Principles

The objectives of a costs order

9Indemnification of the successful party to a proceeding is the paramount, but not the only, objective to be served by a costs order. Other objectives include encouraging settlement, discouraging unreasonable conduct and unnecessary litigation,¹ and preserving access to justice.²

10An appropriate costs order balances two conflicting principles:

1. A blameless litigant who is successful in a proceeding should not be required to bear the costs of having his or her rights tested.

2. Citizens should not be made to feel unduly hesitant to assert or defend their rights in court by the prospect that, if unsuccessful, they will be required to bear all of the opposing party’s costs.

11The ultimate objective in balancing these two principles is to ensure that the justice system works fairly and efficiently.³

The discretion to be exercised

12The determination as to which party, if any, should compensate the other for his/her costs, and as to the amount of such costs, is “within the court’s discretion.”⁴ The court must exercise its discretion with due regard to the objectives of costs awards, and to Rule 24(11) of the Family Law Rules, which sets out the factors relevant to how the objectives are best attained in a particular case.

The outcome of the motion

13Consideration of the relative success of the parties on the issues in the motion is the starting point in determining costs.⁵ For the purposes of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested, and against the terms of any offers to settle.⁶ Ms. Ganie was substantially successful in her motion, having secured an order for the two older children to be moved to a school close to her residence, and the postponement of Mr. Ganie’s two weeks of uninterrupted access to the youngest child until 2017.

Factors to be considered

14Rule 24(11) of the Family Law Rules lists the factors the court should consider when quantifying costs:

24. (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.⁷

Importance, complexity, and difficulty

15The motion was of importance to the parties. The longer the status quo arising from the December 31, 2014 order prevailed, with the older two children residing with Mr. Ganie during the week, the greater the risk, from Ms. Ganie’s point of view, that Mr. Ganie and his aunt and sister would undermine the children’s relationship with her.

16The motion was of moderate complexity, owing to the following issues that had to be determined:

a) Whether Ms. Ganie was required to prove a material change of circumstances to change a temporary and without prejudice order;

b) Whether a material change of circumstances had occurred;

c) Whether the court should rely on a Children’s Lawyer’s report before there had been cross-examination on the report at trial;

d) The relative impact on the children of maintaining the status quo that had prevailed since the December 2014 order was made, and of restoring the children to Ms. Ganie, and whether it was in the children’s best interests to change schools immediately.

Reasonableness of each party’s behaviour – scale of costs

17Substantial indemnity costs, like their predecessor, solicitor and client costs, are exceptional. Mark M. Orkin, in The Law of Costs,⁸ cites the Supreme Court of Canada in Young v. Young, in this regard: “Solicitor and client costs are generally awarded only where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties.”

18In Empire Life Insurance Co. v. Krystal Holdings Inc., in 2009, Archibald J. stated: “Substantial indemnity costs are an exceptional award, saved for extenuating circumstances such as situations where there has been egregious conduct … or where a motion has been brought unreasonably”⁹ The same principle can apply where a motion is unreasonably opposed, but the court must be careful not to characterize every lack of success in a motion as evidence of bad faith or unreasonable conduct to justify an award of costs on a higher scale.

19A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the FLR.¹⁰ A finding that the motion should not have been brought, or should not have been opposed, is sufficient to attract costs on this higher scale. The determination of costs in the present case is governed by the FLR, not by the Rules of Civil Procedure.¹¹ Under the FLR, the traditional assumption that there are only two levels of costs (“party-and-party”/“solicitor-and-client”; or “partial indemnity”/“substantial indemnity”), no longer applies. The court is simply required to consider the range between a nominal amount of costs and full recovery.¹²In a family law case, the court need not find “special circumstances” before ordering costs on a substantial or full indemnity scale.¹³

20Nevertheless, within the spectrum of motions to vary a temporary custody and access order, the present case does not justify an order for costs on a substantial or full indemnity scale, nor are costs on such a scale claimed. Neither party’s conduct was so unreasonable as to deprive Ms. Ganie of her costs, or so as to sanction Mr. Ganie by requiring him to pay Ms. Ganie’s costs on a higher scale. While it was unreasonable for Mr. Ganie to deliver a cross-motion on the eve of the hearing, I am not satisfied that his doing so added substantially to the time required for preparation or for the hearing. Mr. Ganie would, in all likelihood, have relied on the same evidence in opposition to Ms. Ganie’s motion that he relied on in support of his cross-motion. For these reasons, Ms. Ganie will be awarded her costs on a partial indemnity scale.

Lawyer’s rates

21Ms. Ganie’s lawyer, Fola Adekusibe, was called to the Bar of Lagos in 1989 and to the Bar of Ontario in 2003. He had practiced law for 25 years when he argued these motions. In determining the appropriate hourly rates to be assigned to him, the court follows the approach taken by Aitkin J. in Geographic Resources.¹⁴ 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 the maximum partial indemnity hourly rates for counsel of various levels of experience.

22The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate. 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.

23The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $350 for lawyers of over 20 years’ experience.¹⁵ The upper limits of hourly rates in the Costs Bulletin are generally intended for the most complex and important of cases. However, having regard to Mr. Adekusibe’s 25 years’ experience, and the moderate complexity of the motion, he was entitled to claim at least $255 per hour in 2005.

24The 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,¹⁶ 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.

25Based on the Bank of Canada Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the 2015 equivalent of the maximum rate of $350 per hour was $413.15. The 2015 equivalent of $255 in 2005 is $301.01. I round this amount down to $300.

26Mr. Ganie disputes Ms. Ganie’s right to claim her costs based on an hourly rate exceeding the Legal Aid rate, but has not offered any authority in support of that position. The fact that Ms. Ganie retained Mr. Adekusibe on a Legal Aid certificate does not affect the rate which she is entitled to claim for the services Mr. Adekusibe provided. The Legal Aid Services Act provides:

46(1) The costs awarded in any other order made in favour of an individual who has received legal aid services is recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.¹⁷

27In Nairn v. Lukowski, in 2002, the applicant received services on a Legal Aid Certificate, and the Family Court stated, “the fact that she was on Legal Aid does not limit costs recoverable to the amount payable to counsel pursuant to the Legal Aid rates…” In that case, the court awarded costs at an hourly rate of $200, an amount in excess of the Legal Aid rate. Justice Wein reviewed the jurisprudence and came to a similar conclusion in Ramcharitar v. Ramcharitar, in 2002. Justice Wein stated:

[T]here is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rate would be accordingly reduced.¹⁸

28The court has taken a similar approach to fees charged under a pre-paid legal services agreement, such as the ones administered by C.A.W. and Unifor. I adopt the reasoning in those cases, and particularly the decision of this court in Friday v. Friday, in 2013, in which the court held that such agreements should not be construed as setting an upper limit on costs otherwise payable to a successful party.¹⁹

29The Costs Bulletin entitles Ms. Ganie’s lawyer to claim a maximum hourly rate of $413.15 on a partial indemnity scale for Mr. Adekusibe after adjusting his 2005 hourly rate for inflation. Ms. Ganie has claimed costs based on an hourly rate of $300 per hour, which is the equivalent of $255 in 2005, being $45 per hour less than the maximum hourly rate for a lawyer with over 20 years’ experience. I find that the hourly rate claimed is reasonable.

Time properly spent on the case

30Rule 24(11)(d) of the FLR directs me to consider “the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order.”

31Mr. Adekusibe spent the following time on the motion:

a) 4.5 hours to review the 40 page report from the Office of the Children’s Lawyer;

b) 5 hours to meet with his client and draft her Notice of Motion and supporting affidavit, including exhibits;

c) 3 hours to meet with his client to review, revise, and commission her affidavit;

d) 10 hours to review Mr. Ganie’s cross-motion and supporting affidavits, including exhibits, and to review the jurisprudence, and draft his client’s responding material;

e) 4 hours to prepare for the hearing;

f) 5 hours to attend the hearing on September 15, and a further 2.5 hours to attend on September 18, 2015.

g) 1.5 hours for correspondence, and to arrange for the service of documents and prepare costs submissions.

32Mr. Ganie argues that Ms. Ganie has claimed excessive time but he has not delivered a Costs Outline or dockets setting out the time that his own counsel spent on the motion. Having regard to Mr. Ganie’s 31 page affidavit, consisting of 207 paragraphs and 20 exhibits comprising a further 178 pages, including affidavits from 4 other individuals, his counsel is unlikely to have spent less time than Ms. Ganie’s counsel.

33This court has held, on several occasions, that when one party attacks another’s costs as excessive, but does not put its own dockets before the court, the attack “is no more than an attack in the air.” In Risorto v. State Farm Mutual Automobile Insurance Co., (2003), Winkler J., then a motion judge, stated:

The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made. In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i). In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter. ²⁰ [Emphasis added.]

Disbursements

34Ms. Ganie claims $187.90 for disbursements, consisting of photocopies, binding, and process serving. Mr. Ganie does not take issue with the disbursements and I find them to be reasonable.

Other Relevant Matters

35I must “step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved.” In determining what is fair and reasonable, I must take into account the reasonable expectation of the parties concerning the amount of costs.²¹

36Awards of costs in motions to change custody or access vary greatly, depending on their factual complexity, the extent of the change sought, and the reasonableness of the parties’ conduct. I have considered the following costs awards made in such cases:

(a) In Winton v. Lofranco, (2005), Himel J. awarded costs of $50,000 for fees and $11,000 for disbursements in a motion to change custody and cross-motion for support involving a three day hearing.²²

(b) In Mooney v. Fast, (2013), Curtis J. awarded the mother costs of $8,000 in a motion to change a consent order that had awarded her sole custody of the parties’ six-year-old child with reasonable access to the father. In her motion, the mother sought supervised access for the father (and other claims), and the father sought joint custody (and other claims).²³

(c) In Gallacher v. Gallacher, (2005), Wolder J. awarded the father his costs in the amount of $15,810.36 following a two day trial of the mother’s motion to change an order that had granted him sole custody of the children.²⁴

(d) In Macdonald v. Magel, (2008), Olah J. awarded costs of $12,500 to a mother in a successful motion to change her access from supervised to unsupervised access.²⁵

(e) In A.B. v. C.D., (2011), Mossip J. awarded the mother her costs of $50,000 after a one day hearing in which she successfully resisted the father’s motion to change a custody and access order by granting him access and obtained an order that the father have no access.²⁶

(f) In Hall v. He, (2012), Linhares de Sousa J. awarded the mother her costs in the amount of $20,000 when she successfully resisted the father’s motion to change an order that provided that the parties’ child be principally resident with the mother, and to require that the child live with him while attending school.²⁷

(g) In Pang v. Chin Pang, (2014), this court ordered the wife to pay costs, on a full recovery basis, in the amount of $29,249.30, in a successful motion by the husband to change a final order for custody and access.²⁸

(h) In Durkin v Cunningham, (2015), this court awarded the husband $30,000 on a partial indemnity scale, inclusive of fees, HST and disbursements, in his successful motion to vary an order for custody and access.²⁹

37The costs ordered to be paid in such cases, involving motions to change orders for custody and access, should have informed Mr. Ganie’s reasonable expectation of the costs he might be required to pay if unsuccessful.

38Mr. Ganie states that he is unable to bear the costs requested due to his loss of employment following the hearing, but has offered no evidence to support his position that he had lose his employment or that he would face undue hardship if required to pay Ms. Ganie’s costs in the amount claimed.

39Mr. Ganie’s lawyer argues that his client should not have expected to pay the amount claimed because Ms. Ganie retained her lawyer on a Legal Aid Certificate. It is the responsibility of counsel to advise their respective clients of the fees that the other party is entitled to claim pursuant to the Costs Bulletin, adjusted for inflation, of the jurisprudence referred to above, and of the potential consequences of an adverse result, before embarking on the course that will expose them to those consequences. I must assume that Mr. Ganie received the appropriate advice from his counsel as to the risks he faced, and decided to proceed in spite of them.

40In all the circumstances, I find that the costs claimed by Ms. Ganie are proportionate to the interests at stake in her motion, and as to the amount Mr. Ganie should have expected to pay if unsuccessful, based on the costs awarded for similar motions in other cases.

Conclusion and Order

41For the foregoing reasons, it is ordered that:

1. Mr. Ganie shall, within 60 days, pay to Ms. Ganie her costs of the motion in the amount of $7,886.73, consisting of the following:

(a) Total fees: $6,791.40

(b) HST on fees: $883.00

(c) Taxable Disbursements: $187.90

(d) H.S.T.: $24.43

Price J.

Released: March 15, 2016

CITATION: Ganie v. Ganie, 2016 ONSC 1831

COURT FILE NO.: FS-14-80487-00

DATE: 2016-03-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BIBI GANIE

Applicant

• and –

ROSHAM GANIE

Respondent

COSTS ENDORSEMENT

Price J.

Footnotes

1. 1Fellowes, McNeil v. Kansa General International Insurance Co. 1997 12208 (ON SC), 1997 12208, 37 O.R. (3d) 464 (ON S.C.), para. 10
2. 21465778 Ontario Inc. v. 1122077 Ontario Ltd. 2006 35819 (2006), 82 O.R. (3d) 757 (ON C.A.), per Feldman J.A., at para. 45
3. 3British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25, 26 [Okanagan].
4. 4Courts of Justice Act, s. 131.
5. 5Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ)
6. 6Johanns v. Fulford 2010 ONCJ 756, at para. 13
7. 7Family Law Rules, O. Reg. 114/99 [as amended]
8. 8M. M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987), at p. 2-46 [Orkin]; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 154, re-stated in Perri.
9. 9Empire Life Insurance Co. v. Krystal Holdings Inc, [2009] O.J. No. 1095 (S.C.), at para. 19.
10. 10Osmar v. Osmar, 2000 20380 (ON SC), 2000 20380 (Ont. S.C.), at para. 11, Aston J
11. 11Rules of Civil Procedure, R.R.O. 1990, Reg 194
12. 12Osmar.
13. 13Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287.
14. 14Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, paras. 7 and 11 to 16
15. 15“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.
16. 16First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 2012 ONSC 1359 (S.C.J.)
17. 17Legal Aid Services Act, 1998, SO 1998, c 26
18. 18Ramcharitar v. Ramcharitar, 2002 ONSC 53246, at para. 25
19. 19Zeleny v Zeleny (2004) 2004 5094 (ON SC), 69 O.R.(3rd) 287; Childs v. Childs, an unreported decision of Justice Corbett dated July 7, 2005; Fallis v. Garcia, an unreported decision of Justice Mossip, dated July 28, 2008 Friday v. Friday, 2013 CarswellOnt 13707, 2013 ONSC 6179)
20. 20Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 43566 (ON SC), ONSC 43566, 64 O.R. (3d) 135, at para. 10 (S.C.), per Winkler J., cited in Springer v. Aird& Berlins LLP (2009), 2009 26608 (ON SC), 2009 ONSC 26608, 74 C.C.E.L.(3d) 243 (Ont. S.C.), at paras. 10-17.
21. 21See: Boucher; Moon; Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
22. 22Winton v. Lofranco (2005), 2005 63819 (ON SC), 21 RFL (6th) 228 (Ont. S.C.).
23. 23Mooney v. Fast, 2013 ONCJ 584
24. 24Gallacher v. Gallacher, 2005 ONCJ 326
25. 25Macdonald v. Magel, 2008 ONSC 36161
26. 26A.B. v. C.D., 2011 ONSC 1038.
27. 27Hall v. He, 2012 ONSC 6461.
28. 28Chin Pang v. Chin Pang, 2014 ONSC 585, at para. 13
29. 29Durkin v Cunningham, 2015 ONSC 1741, at para. 59