Court File and Parties

COURT FILE NO.: FC-15-774 DATE: 2016/04/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Atallah Ahmad Daher, Applicant AND Dania Ahmad Khanafer, Respondent

BEFORE: Shelston J.

COUNSEL: Jodi R. Fleishman, counsel for the Applicant Alexei Durgali, counsel for the Respondent

HEARD: In Writing (at Ottawa)

COST ENDORSEMENT

Overview

[1] The applicant seeks substantial indemnity costs in the amount of $15,230.22. The respondent submits that it would be more just to reserve the decision as to costs of the trial judge and in the alternative the respondent submits that she is entitled to costs on a substantial indemnity basis in the amount of $17,307.

The motions before the court

[2] On February 11, 2016, I heard two notices of motions being:

(a) The respondent sought an order requiring the applicant to post security for costs in the amount of $100,000 and an order for costs on a full indemnity basis; and

(b) The applicant sought an order dismissing the respondent’s motion for security for costs; an order that the applicant would have access to the child from March 14 to March 18, 2016 from 8 a.m. to 4 p.m. each day and costs on a substantial indemnity basis.

Dispositions of the motions

[3] I dismissed the respondent’s motion.

[4] I granted the applicant supervised access to the child between the hours of 9 a.m. and 1 p.m. on March 14, March 15, March 16, March 17 and March 18 and designated a supervisor.

The Family Law Rules

[5] Under Rule 24 (1) of the Family Law Rules, O. Reg. 114/99, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[6] Rule 24 (5) states that 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.

[7] Rule 24 (10) indicates that promptly after each step in the case, the judge or other person who dealt with that step shall decide any summary manner, who, if anyone, is entitled to costs, and set the amount of costs.

[8] Rule 24 (11) states that 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 witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;

(e) Expenses properly paid or payable; and

(f) Any other relevant matter.

Analysis

Reserving cost of the trial judge

[9] The respondent submits that I should reserve the issue of costs to the trial judge as it would be more just. In support of that argument, the respondent submits that both motions were dismissed due to the lack of viva voce evidence.

[10] While I indicated that the determination of custody and access would be left for a final determination by a trial judge who would hear the viva voce evidence that did not prevent me from ruling on interim access and dismissing the claim for a $100,000 security for costs.

[11] I am not inclined to defer the cost analysis of this motion to the trial judge. Our Court of Appeal in Islam v. Rahman, 2007 ONCA 622 has directed that costs are to be assessed at each step of the litigation. As well, Rule 24 (10) of the Family Law Rules requires an adjudication of costs at each step by the judge or other person who dealt with at step. Such adjudication is to be done in a summary matter and the court is to set the amount of costs.

[12] Both the Family Law Rules and the jurisprudence confer on the judge dealing with a step, in this case the motions, to summarily decide and assess costs. In the circumstances, I reject the submission by the respondent to defer the costs to the trial judge.

Successful Party

[13] In Berta v. Berta, 2016 ONCA 918, the Court of Appeal stated at para. 94:

A successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M.(A.C.) , at paras. 40-43.

[14] I find that the applicant was the more successful party. The main part of the oral argument and the substantial part of the written material concerned the issue of the security for costs.

[15] The respondent submits that both motions were dismissed in that her motion for security for costs was dismissed and the applicant’s motion for unsupervised access was dismissed. I do not agree with that submission. I do agree that the respondent’s motion for security for costs was dismissed. However, the applicant’s motion for unsupervised access was not granted but supervised access was granted for the specific days as set out in the endorsement.

[16] I agree with the applicant’s submissions that the issue of the applicant’s motion was not just supervision but his request for more hours with the child given the very limited time that was being offered by the respondent. The applicant was successful because he was awarded 20 hours over five days when the access offered had been only in two hour increments over a 10 or 14 day visit.

The importance, complexity or difficulty of the issues

[17] The issue of security for costs claimed by the respondent was very important because effectively if it had been granted and the applicant was unable to raise the required funds, it may have prevented him from presenting evidence at a custody trial regarding his own child. In my view this motion was very important.

[18] I did not find that the motion was complex or difficult.

The reasonableness or unreasonableness of each party’s behaviour

[19] The applicant submits that the respondent was unreasonable in refusing to withdraw the motion for security for costs, brought the motion just three months before the trial and advanced an unreasonable position by stating that the applicant had no claim to custody or joint custody.

[20] In response the respondent denies that she acted unreasonably arguing that the applicant does not have any ability to pay any potential cost award in Canada, as he resides in Spain, and that she did not bring the motion three months before the trial.

[21] In my review of the positions taken by the party, I do not find that either party acted unreasonably. The respondent served her motion returnable November 17, 2015, and it was adjourned until February 11, 2016 on consent. With respect to her refusal to withdraw the motion for security for costs; that, in itself is not reasonable nor is her taking a position of the applicant has no claim to custody or joint custody.

The lawyer’s rates and disbursements

[22] I find that the applicant’s counsel hourly rate of $265 for the period from July 2015 to December 31, 2015 and $275 an hour effective January 2016 to be reasonable based on her 14 years of experience.

[23] With respect to the disbursements, the respondent objects to disbursements for emails, printing and scanning arguing that they are not allowable disbursements. I agree and consequently allow disbursements of $52.18 for faxes and $187.25 for photocopies totaling $239.43.

The time properly spent on the case

[24] The jurisprudence provides the court with the principles to take into consideration when determining costs. The court is directed not to take a mechanical calculation approach as was set by Justice Aston in Delellis v. Delellis.

[25] Further, in assessing costs the Court of Appeal has indicated that we are not to reimburse the litigant for every dollar spent on legal fees. Rather, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay and the particular proceedings as decided in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

[26] To undertake the proper analysis, I start with a review of the bill of costs. The applicant’s bill of costs shows legal fees with the summary of the description of work done and the respective hourly rates of the various individuals including a law clerk/assistant.

[27] The bill of costs does not provide a detailed breakdown as to the time and services provided. What I have received is a total of the hours spent by the various individuals on the file. This is not helpful as it does not provide me with a clear picture of how much time was spent by each person on each aspect of the litigation.

[28] The applicant’s bill of costs for partial indemnity was $8,474.70 for legal fees and $12,712.05 for substantial indemnity.

[29] The respondent’s bill of costs for partial indemnity was $11,400.50 for legal fees and $15,316 for substantial indemnity.

Any other relevant matter

[30] Neither party filed an offer to settle. Consequently, that is not a factor in my consideration.

Disposition

[31] Taking into account all the factors, including the fact that the applicant was a successful party as well as what is a reasonable amount for the unsuccessful party to pay, I order the respondent to pay to the applicant sum of $9,000 inclusive of disbursements and HST.

[32] This sum shall not be due and payable until the trial judge releases a decision on costs with respect to the upcoming trial.

Shelston J. Released: April 19, 2016