NEWMARKET COURT FILE NO.: FC-12-040106-00 DATE: 20160920 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Reshma Vhora, Applicant AND: Mohamad Moonaf Vhora and Zarin Vhora, Respondents
BEFORE: The Hon. Mr. Justice J.P.L. McDermot
COUNSEL: Joanne Lagoudis, for the Applicant Peter M. Callahan, for the Respondents
HEARD: By written submissions
COSTS ENDORSEMENT
Background
[1] On November 25, 2015, I completed the hearing of a three-day trial between the applicant wife Reshma Vhora and the respondent husband Mohamad Vhora. The issues were financial in nature only; the parties had settled their custody and access issues earlier on October 20, 2015. The parties had also previously settled ongoing child support issues. This left the following issues for trial:
(a) Child support arrears; (b) Spousal support arrears; (c) Ongoing spousal support; and (d) Equalization of property.
[2] Regarding the latter issue, much time was spent at trial arguing over the matrimonial home which on the date of separation was in the name of both Mr. Vhora and his mother Zarin Vhora. This transaction along with a promissory note that Mr. Vhora signed in favour of his father for his down payment raised suspicions especially as the Promissory Note was only disclosed to the applicant after separation. As a result, pleadings were amended to add Zarin Vhora as a party to the proceedings; this was so that Ms. Vhora could make a claim to have Zarin Vhora’s interest in the property declared to be held by way of a resulting trust in favour of the respondent husband. That claim was ultimately dismissed.
[3] In my Endorsement I determined that Mr. Vhora owed his wife $11,352 in retroactive child support. I quantified the equalization payment as being $181,909.96. Spousal support was set at $3,200 per month for a 13 year period. The claim by Ms. Vhora for retroactive spousal support was dismissed.
[4] I invited submissions for costs of trial. Both husband and wife have made submissions and Mr. Callahan has also made submissions for costs on behalf of Zarin Vhora who he acted for at trial along with Mohamad Vhora. Ms. Vhora seeks costs against her husband based upon her offers to settle and success at trial. Mr. Vhora says success was divided but if anything he was more successful at trial than was Ms. Vhora; he therefore claims costs against Ms. Vhora. Zarin Vhora also claims costs. She noted through her counsel that the resulting trust claim was dismissed and she is therefore entitled to costs. Zarin Vhora says that the applicant wife alleged fraud and Zarin Vhora therefore says that she is entitled to costs on a full indemnity basis.
Costs as Between Reshma Vhora and Mohamad Vhora
[5] The first issue to be considered is costs as between husband and wife in this litigation.
[6] The applicant seeks costs on a full recovery basis. She seeks costs based on upon success in this matter as well as her offers to settle which were attached to her Costs Submissions.
[7] She further says that Mr. Vhora was guilty of unreasonable conduct on several fronts. She cites unreasonable conduct in respect of the respondent’s failure to agree to child support based upon his income as well as conduct of the respondent as part of his criminal proceedings. She further claims unreasonable conduct respecting the transfer of the vehicle which Ms. Vhora used after the date of separation. The applicant also claims unreasonable conduct concerning the conduct of the trial itself.
[8] Mr. Vhora also claims unreasonable conduct. He says that when the parties separated the respondent surreptitiously removed the children from the care of the applicant. He speaks of conduct concerning the applicant’s conduct of the custody and access proceedings specifically the failure of the applicant to encourage contact between the children and Mr. Vhora. Mr. Vhora accuses the applicant of falsely accusing the respondent father of an assault and later alienating the children from him. Mr. Vhora criticizes the applicant for attempting to trade a reconciliation for withdrawal of the charges, calling this “blackmail”.
[9] Mr. Vhora also suggests that he was as successful if not more successful than Ms. Vhora was at trial. He mostly relies upon the fact the claim for retroactive spousal support was dismissed. He also, however, states that Ms. Vhora claimed some $358,000 in an equalization payment at trial but was only awarded $202,727.85.
[10] Mr. Vhora notes that he made nine offers to settle. None of those offers were disclosed in his materials.
[11] As stated by Pazaratz J. in Jackson v. Mayerle, 2016 ONSC 1556, Rules 18 and 24 of the Family Law Rules, and most of the case law concerning costs focuses on two words: “success” and “reasonableness” (para. 20).
[12] It is correct that these are the major issues consideration of a costs award. Under Rule 24(1) of the Family Law Rules, costs generally follow the event and a successful party is presumed to be entitled to costs. An exception however, is where the court finds “unreasonable conduct”: under Rule 24(4) if a party has behaved unreasonably, even if that party is successful he or she may be deprived of costs.
[13] Moreover if there is a finding of bad faith conduct (and neither party is claiming bad faith conduct in this case) costs must be awarded against the party guilty of bad faith conduct on a full recovery basis.
[14] I will firstly examine success at trial in light of the offers to settle filed by the parties. I will then review the issue of unreasonable conduct.
Success at Trial/Offers to Settle
[15] Rule 18 governs offers to settle. Under Rule 18(14) if a party makes an offer to settle and obtains an order that is more favourable than his or his offer at trial, that party is presumptively entitled to full recovery of costs from the date of the offer to settle. To have effect under this Rule, the offer must have been made seven days prior to the commencement of trial and it must be signed by the party. Even however, if the offer does not comply with Rule 18(14) the court may take into account any offer in setting costs: Rule 18(16).
[16] However offers to settle are not necessarily wholly for the purposes of assessing the amount of costs. In determining success I may also take into account the offers to settle submitted by each of the parties: see Sims-Howarth v. Bilcliffe at para. 9 and Lawson v. Lawson at para. 7. As well where there are a number of issues before the court in setting costs I can have regard to the dominant issue at trial in light of the offers to settle which have been submitted: see Firth v. Allerton, 2013 O.J. No. 3992 (S.C.J.).
[17] The applicant attached a number of offers to her materials.
[18] The first offer to settle (entitled “Offer 1” at the top of the first page) is dated November 14, 2014. The first three pages of the offer deal with custody and child support (which is since been settled). On page 4 of the offer the applicant offers to set support at $2,483 per month. Page 5 sets spousal support arrears at $37,000 and the offer contains a provision on page 6 for $220,000 equalization payment less $20,817.89 which was the value of the Subaru transferred to her and which the parties had agreed to deduct from any equalization payment.
[19] The second offer (entitled “Offer 2”) which contains exactly the same terms as to custody, access and spousal support including arrears. The second offer is incomplete as it states that “issue of the equalization of net family property shall proceed to trial period”. Both Offer 1 and Offer 2 set child support arrears at zero. Both offers are dated November 14, 2014 and it is impossible to know from the materials when each of these inconsistent offers was served on the respondent. Neither of these offers is severable.
[20] The third offer made by the applicant concerned only retroactive child support. This offer was made November 12, 2015. The applicant offered to set retroactive child support at $11,352 which was the amount that I ordered. This is not surprising as I used the calculations provided by the applicant in her final submissions in setting child support.
[21] Mr. Vhora also made a number of offers. He says in his material that he made nine offers to settle throughout the proceedings; the only three offers that were presented to me were provided by the applicant in her Costs Submissions. These were offers made on the eve of trial and were effectively severable as there were three separate offers: one concerning spousal support, a second concerning equalization of property and a third respecting retroactive child support. These offers were as follows:
(a) The respondent offered to pay lump sum spousal support in the net amount of $44,704.93 taking into account the spousal support that he paid to date under the interim order made in this proceeding. (b) Mr. Vhora offered to pay $139,791.53 less $20,817.89 in respect of the 2010 Mitsubishi Lancer. The net amount offered for equalization of property was therefore $118,973.64. (c) Mr. Vhora finally offered to pay $6,000 into a RESP in full satisfaction of any retroactive arrears of child support.
[22] As noted by Mr. Callahan, the applicant’s offers were not severable. The child support issue was eventually settled and large portions of her offers to settle from November 2014 were no longer capable of acceptance after October 20, 2015 because certain issues in the offer had been settled and certain issues were not. As stated by Wildman J. in Sepiashvili v. Sepiashvili, “The importance of severable offers cannot be overemphasized.” [para. 17]. As the applicant’s offers were not severable they do not comply with Rule 18(14) and they do not give the applicant an entitlement to full recovery costs under that rule. Furthermore the second offer made by Ms. Vhora which stated that the “issue of the equalization of net family property shall proceed to trial” essentially begs the question and is not an offer capable of acceptance on equalization issues which ended up being the major issue at trial.
[23] I therefore find that the applicant has not complied with Rule 18 and she is therefore not entitled to full recovery costs under that Rule.
[24] The respondent is also not entitled to costs under that Rule. Even if severable, none of his offers to settle served prior to trial were bettered at trial; in fact the respondent’s offers were significantly lower than the result at trial. The offers served by the respondent do not give rise to any entitlement to costs by the respondent Mohamad Vhora.
[25] The major issue at trial was the issue of the equalization of property and specifically the issue of ownership of the matrimonial home and the validity of the Promissory Note that Mr. Vhora entered into with his father. Most of the testimony surrounded this and most of the submissions by both counsel addressed those issues. I made a finding that Mr. Vhora did not hold a resulting trust interest in the matrimonial home beyond his one-half interest reflected by the title of the property. I also made a finding that Mr. Vhora, by failing to call his father and by failing to testify as to the specific advances made under Note, did not prove the deduction claimed under the Promissory Note or prove advances made his father to support the alleged debt as reflected by the Promissory Note. Based upon this, I found that Mr. Vhora owed an equalization payment of $181,909.96 taking into account the value of the Mitsubishi motor vehicle which was transferred to Ms. Vhora in exchange for credit as against the equalization payment.
[26] The secondary issue was spousal support which was ordered in the amount of $3,200 per month. The final issue (and I agree with Mr. Callahan in respect of this) was the issue of retroactive child and spousal support. Very little time was spent on these latter two issues and I mostly dealt with these concerns based upon the written submissions filed by the parties.
[27] Accordingly the issue is success on the major issues before me being equalization of property (including the issue of the matrimonial home and Promissory Note) and spousal support.
[28] Mr. Callahan urges me to find success on the issue on equalization based upon the positions taken at trial. He says that Ms. Vhora took the position at trial that she was entitled to an equalization payment of $358,234. According to his submissions Mr. Vhora only agreed to a payment of $101,191.27. Mr. Callahan says that based upon these positions at trial the respondent was more successful than the applicant.
[29] In fact the offers to settle paint quite a different picture. In her offer to settle dated November 14, 2014, the applicant offered to accept $220,000 less $20,817.89 for a total equalization payment of $199,182.11. This is much closer to the amount realized at trial (of $181,909) than the respondent’s figure in his offer to settle being $118,973.64.
[30] Accordingly based upon the respective offers filed by the parties I find that the applicant enjoyed substantial success on the major issue at trial which was equalization of property.
[31] It is also apparent that the applicant enjoyed substantial success on spousal support. In her non-severable offer, she offered to accept spousal support in the amount of $2,483 per month, ending June 30, 2021, which appears to be about 9 ½ years after separation. Mr. Vhora, on the other hand, offered to make a lump sum payment of $122,523, less the amount of spousal support paid pursuant to the interim order in this matter, for a net amount owing of $44,704.93.
[32] I ordered $3,200 per month for 13 years, ending on January 31, 2025. Translating this into a lump sum amount, as the respondent did in his offer, it is apparent that the amount that the respondent would pay in spousal support, less tax consequences, would be well over $300,000, and closer to $400,000. And had the respondent accepted the applicant’s offer regarding spousal support, he would have paid substantially less than the amount ordered at trial as both the monthly amount and the duration were less than that ordered.
[33] The only other issues were child and spousal support arrears. Success was divided on those issues, as I ordered retroactive child support as requested by the applicant but I refused her request for retroactive spousal support. However, these issues were relatively minor, with little time spent on them at trial. I discount these issues for costs purposes as the major issues were spousal support and equalization of property.
[34] I realize that the offers submitted by the applicant were not severable and could not be unconditionally accepted, especially once custody was settled. However, they would have been a basis for negotiation, and under Rule 18(16), I can take into account offers to settle even where they do not otherwise comply with the formalities of Rule 18.
[35] The real issue is the ultimate result at trial and not success on the issues leading to that result. If the latter were the case, I would also take into account the respondent was completely unsuccessful in imputing income to the applicant, something which was the subject matter of a vigorous cross examination by respondent’s counsel. And if we focus on the ultimate result at trial on the major issues, the applicant was clearly the successful party in this case.
[36] I find that, based upon the offers to settle served by the parties, the applicant had substantial success on the major issues at trial. I therefore find that she was the successful party at trial. Normally, costs would follow the applicant’s success at trial. This is, however, subject to the issue of unreasonable conduct.
Unreasonable Conduct
[37] Both parties have alleged unreasonable conduct within the meaning of Rule 24(4) of the Family Law Rules. Neither party, on the other hand, has alleged bad faith conduct, a step beyond unreasonable conduct, within the meaning of Rule 24(8).
[38] Ms. Lagoudis, on behalf of the applicant, says that the respondent was guilty of unreasonable conduct, by reason of his early failures to agree to child support according to his income. There was also a lot of talk between the parties regarding reconciliation and the criminal charges; Ms. Lagoudis suggests that the respondent convinced the applicant that is she withdrew her motion for interim spousal support, he would consider reconciliation. Finally, Ms. Lagoudis says that Mr. Vhora was unreasonable in his presentation of his case, especially respecting his promissory note and equalization of property.
[39] Mr. Callaghan also alleges unreasonable conduct on the part of the applicant. He says that the applicant’s conduct respecting the children was unreasonable; he says that the applicant leaving the matrimonial home, without notice, and her later interference with access, constituted unreasonable conduct. He says that the criminal charges were also unreasonable and were an attempt to get a ‘leg up’ in the case. Finally, he also speaks of the potential reconciliation of the parties; he says that the applicant’s offer to reconcile and drop the criminal charges constitutes unreasonable conduct. Finally, he notes the allegations of fraud, never proven at trial, as conduct which would warrant an award of costs on a full recovery basis.
[40] I decline to find the applicant guilty of unreasonable conduct.
[41] In respect the applicant’s conduct respecting the children and her departure from the matrimonial home without notice, it is important to remember that the custody issues were settled on a without costs basis. The complaints that the applicant has respecting the children cannot be taken into account when the children’s issues were settled on a without costs basis. I presume that when both parties agreed that there would be no costs concerning the custody issues, that this would include any claims of unreasonable conduct by the applicant in respect of the children.
[42] The issue of the parties’ reconciliation was raised by both parties. Neither the applicant nor the respondent appeared to have been reasonable concerning that issue and concerning the attempted resolution of the criminal charges. No evidence was led at trial by the applicant that she delayed the motion for spousal support because of the respondent’s promises of reconciliation. It is clear that the applicant wanted reconciliation and the respondent was ambivalent about this, and I decline to consider either parties comments respecting reconciliation as a basis for unreasonable conduct.
[43] I decline to find that the charges against the respondent for assault constituted unreasonable conduct on the part of the applicant. She explained in testimony that she did not call the police; the shelter did. As well, the evidence was unclear as to whether the charges were withdrawn or whether the matter was resolved by peace bond, which is a “without prejudice” means of dealing with charges of this nature. Finally, even if the charges were withdrawn because there was no reasonable possibility of conviction, this does not mean that the offence did not take place; it means that it could not be proven beyond a reasonable doubt. The civil test is different.
[44] As well, the respondent attempted to force the applicant’s family law lawyer to testify at his criminal trial, which strikes me as questionable, if not unreasonable litigation conduct.
[45] It is acknowledged that the applicant alleged that the respondent’s signature on the promissory note was fraudulent. That was disproven at trial.
[46] However, my major concern about the property issues, including the promissory note and ownership of the home, concerns the lack of clarity in the respondent’s evidence concerning these transactions, as well as his failure to call his father and sufficiently explain the transactions between his parents and himself at trial. The lack of clarity resulted in the majority of time at trial being spent on litigating those issues. The respondent, in relying upon a an agreement that he acknowledged he drafted badly, as well as his failure to adequately explain the series of transactions by which he purchased his interest in the home, resulted in the applicant being forced to test out various theories in order to obtain a result before the court. It was also acknowledged at trial that the applicant was left in the dark about the property issues and was purposefully not involved in the negotiations between the applicant and his parents, and this too, resulted in the necessity for the applicant presenting several different theories before the Court, concerning the purchase of the home by the respondent. In my view, this conduct, principally that of the respondent, largely resulted in the property issues going to trial.
[47] I find that the respondent, in failing to provide clarity as to facts, which would have been within the exclusive knowledge of himself and his parents, resulted in the various theories being placed before the Court by the applicant, some of which failed, but at least one of which succeeded, partly by reason of the applicant’s failure to call his own father, who was stated to have advanced the funds under the promissory note. There was no explanation given as to why the promissory note was signed seven months after the purchase of the home and two months after the last advance of funds.
[48] I therefore find that the respondent, Mohamad Vhora, was guilty of unreasonable conduct in the prosecution of the case, and in his failure to adequately prove the sizeable deduction resulting in an equalization payment well beyond that offered by him in his offer to settle. I also find him to be unreasonable in keeping his wife in the dark regarding this series of transactions, something which left Ms. Vhora at a severe disadvantage when attempting to calculate what her entitlements were after separation.
[49] I also note that the respondent’s counsel vigorously cross-examined Ms. Vhora on her income. Ms. Vhora had salaried income from her position as an educational assistant with the York Region Board of Education and she had little to hide or prove respecting this income. The cross-examination took an inordinate amount of time and was vigorous, at times almost badgering. It was also ineffectual and proved nothing useful in the determination of spousal support and the issue of need. I found that cross-examination unnecessary and a waste of time at trial. Mr. Vhora’s position on spousal support, under the circumstances, was made more unreasonable by his offer to settle of $44,000 in net spousal support.
[50] I therefore find that Mr. Vhora was guilty of unreasonable conduct. I therefore find that Ms. Vhora is entitled to an award of costs against the respondent, Mohamad Vhora.
[51] I will deal with the issue of costs between Zarin Vhora and the applicant separately.
Costs as Between the Applicant and the Respondent Zarin Vhora
[52] Zarin Vhora is the mother of the respondent, Mohamad Vhora. She is a co-owner of the matrimonial home. She was joined because the applicant sought, as against her, a declaration that Mohamad Vhora owned a portion of her interest in the matrimonial home (all but 10 percent of the value of the home) by way of a resulting trust.
[53] Mr. Callaghan seeks costs as against the applicant by Zarin Vhora. He notes that she should not have been joined as a party and that the case against her was effectively dismissed when the claim for a declaration of resulting trust was dismissed by me at trial.
[54] Mr. Callaghan submits that Zarin Vhora was successful and is entitled to costs, as against the applicant. Zarin Vhora seeks costs on a full recovery basis in the amount of $31,662.94.
[55] Zarin Vhora did, technically, achieve success at trial. The claim for a resulting trust was dismissed and she retained her full one-half interest in the matrimonial home. The difficulty is not whether she is entitled to costs, but from whom she is claiming costs from and her own role in the trial.
[56] As I noted above, there was a complete lack of clarity in the evidence given at trial on behalf of the respondent, Mohamad Vhora, respecting his purchase of the interest in the home. He alleged two agreements, one with his mother, whereby there was a cost-sharing arrangement and the second, whereby, as reflected in the promissory note, wherein Mr. Vhora claims to have borrowed substantial sums of money from his father. The net effect of both of these transactions was to reduce, sharply, Mr. Vhora’s net family property.
[57] That did not occur, but I did find it to be necessary for Ms. Vhora to make various claims, in order to quantify her equalization payment. If I was left confused by the evidence of the respondent husband, I can only imagine the confusion suffered by Ms. Vhora and her counsel in considering her position concerning the property issues.
[58] Furthermore, much of this resulted from the way the applicant was treated within the Vhora household. She was not made privy to the negotiations concerning the matrimonial home; in fact, Mohamad Vhora testified that he saw no need for her to be so involved in financial discussions within that household. Had Ms. Vhora been involved, she may not have had to bring the application to join Zarin Vhora in these proceedings; as well, Zarin Vhora was part of the negotiations concerning Mr. Vhora’s purchase of his interest in the matrimonial home. As reflected by the evidence, she was present during the initial meeting with Mr. Vhora when he demanded an interest in the new home being purchased by his parents, and she was also present, at least by one account, when the promissory note was signed. Yet, Zarin Vhora, when she testified, claimed to have no knowledge of any of the terms of the agreement between her husband and Mohamad Vhora. It is not surprising, under the circumstances, that the claim for resulting trust was brought, because all the applicant was left was with were theories and speculation, as a result of Mr. Vohra’s failure to provide a clear picture regarding the structuring of the purchase of the home and the debt associated with the home.
[59] I, as well, was forced to speculate. And, my speculation was that the transaction, whereby Mr. Vhora obtained an interest in the home was through a three-way agreement, between Mr. Vhora and both of his parents.
[60] Under the circumstances, it is unreasonable for me to award costs to Zarin Vhora, especially when a claim for costs may lie against her own son, who is largely responsible for the property litigation proceeding to trial. In light of this, it would be contrary to the interest of justice to order costs in favour of Zarin Vhora against the applicant. Zarin Vhora’s claim for costs is dismissed.
Quantum of Costs
[61] The applicant claims substantial recovery costs. I note that “substantial indemnity costs” are a creature of the Rules of Civil Procedure, but not of the Family Law Rules. The only scale of costs spoken to in the Family Law Rules is full recovery costs. Accordingly, the range of costs is either full or partial recovery in the discretion of the deciding justice.
[62] That being said, the claim for substantial recovery costs is based upon rule 24(11), which sets out the factors to be considered by the Court in quantifying costs. These are as follows:
(11) In setting the amount of costs, the court 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.
[63] In reviewing these factors I note the following:
(a) Importance, complexity or difficulty of the case
[64] Although this trial was short, the issues were complex. They included the validity of the promissory note, adverse inferences against a party failing to call a witness, resulting trust issues, as well as interpretation of the promissory note and contra proferentem interpretation of a contract.
[65] The written submissions were lengthy as a result. The issues canvassed at trial were complex.
(b) The reasonableness or unreasonableness of each party’s behaviour
[66] I found that the respondent husband was guilty of unreasonable behaviour. His unreasonable behaviour, however, was not so much his behaviour as a party during the litigation, but his unreasonable position at trial regarding spousal support, as well as his failure to provide clarity as to the details of the case he was making. This lack of clarity, as I noted, was largely responsible for the property issues going to trial.
[67] The behaviour, however, could not be called egregious in any way and to obtain full recovery costs there must be bad faith conduct, which is another animal all together. Bad faith conduct is similar to malicious behaviour, with the purpose being to hurt or injure another party. That was not, in my view, Mr. Vhora’s motivation; his unreasonable behaviour was, in my view, an attempt to gain a litigation advantage by not clarifying the facts upon which he relied and failing to call evidence where necessary to do so.
[68] It is certainly not unreasonable conduct sufficient to warrant full recovery costs.
(c) The lawyers’ rates
[69] The hourly rates charged by Ms. Lagoudis, considering her level of experience, are reasonable. It is also reasonable to charge for staff assistance where that staff is involved in preparation of documents or other non-administrative legal duties. I do not agree with Mr. Callahan when he says that the time charged by Ms. Lagoudis’ law clerk should be removed from the bill of costs.
(d) Time properly spent on the case
[70] Ms. Lagoudis has prepared a detailed bill of costs. She has summarized where the time was spent on the litigation and on conferences.
[71] I firstly note that costs were not reserved in respect of any of the conferences before the parties. According to the summary provided by Mr. Callahan, which I have no reason to disbelieve, there were no orders as to costs at any of the conferences or court attendances. The only court attendance where costs were reserved, which was the request for the adjournment before me in May of 2015. Generally, unless costs are reserved, costs of a conference cannot be awarded at trial: see Islam v. Rahman, 2007 ONCA 622.
[72] Accordingly, I disallow any time claimed by the applicant for conferences.
[73] I do allow time to the applicant for preliminary work and pleadings, financial disclosure, the criminal proceeding (where I understand the applicant’s counsel was summonsed as a witness), the trial record, the amended pleadings, the trial preparation and the motion to adjourn, submissions and offers to settle.
(e) Conclusion
[74] The offers to settle in this matter were not severable. Accordingly, they were not capable of acceptance once the child support and custody and access were settled, and therefore do not support an award of full recovery costs under Rule 18. The exception is the offer to settle on child support arrears; this offer was exactly in accordance with the order that I made. However, I agree with Mr. Callahan that this was a small part of the trial and was not the primary issue at trial. Those primary issues were spousal support and equalization.
[75] Moreover, as noted above, the unreasonable conduct of the respondent, Mr. Vhora, was not sufficient to permit the award of full recovery or, if there is such a thing, substantial recovery costs. His unreasonable conduct has much more to do with his loss at trial, which supports an award of costs, but on a partial recovery basis.
[76] Accordingly, Ms. Vhora is entitled to an award of costs on a partial recovery, rather than a substantial recovery basis.
[77] The time taken under the headings allowed in the applicant’s bill of costs result in the following totals of time for the various solicitors and/or law clerks who worked on the file; Joanne Lagoudis, 171.9 hours; Marianne Guirguis, 64.9 hours, Tricia Alcendor, 34.0 hours.
[78] As well, there were several “flat fee” entries for Ms. Lagoudis for trial, which totalled $12,000.
[79] On a partial indemnity basis I allow an hourly rate to Ms. Lagoudis of $200 per hour and an hourly rate of Ms. Guirguis of $100 per hour. For Tricia Alcendor, I allow $130 per hour, as suggested in the bill of costs.
[80] This means that Ms. Guirguis’ time totals $6,940. Ms. Lagoudis’ time totals $34,380 plus the $12,000 in flat fees for trial, for a total of $46,380. For Tricia Alcendor who has a total of 34 hours on the file at $130 per hour, the total time chargeable by her on a partial indemnity basis would be $4,420. The time chargeable by counsel and staff on this file, excluding time spent on conferences, is therefore $57,740 plus HST, which would make for a total of $65,246.20.
[81] Disbursements are claimed in the amount of $6,942.60, inclusive of HST. The disbursements claimed do not appear unreasonable for a matter of this nature. Accordingly, the total claim for costs is $72,188.80 on a partial recovery basis.
[82] I note that this is a reasonable figure considering the complexities of the matter and the trial preparation necessary to deal with the scenarios that the applicant had to put forward considering her inability to obtain clarity as to the issues involving the matrimonial home.
[83] There shall therefore be an award of costs against the respondent, Mohamad Vhora, in favour of the applicant in the amount of $72,188.80, inclusive of HST and disbursements.