Court File and Parties

COURT FILE NO.: FC-16-133 DATE: 2016/10/12 ONTARIO SUPERIOR COURT OF JUSTICE

RE: ABDULLAH SAYED S. KARAR, Applicant AND: SHAIMAA ABO-EL ELLA, Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Julius Dawn, for the applicant Ian Vallance, for the respondent / moving party

HEARD: In writing

Endorsement Regarding Costs

CORTHORN J.

[1] This endorsement as to costs follows my endorsement dated April 15, 2016 pursuant to which the respondent’s request for leave to bring a motion on an urgent basis was dismissed. The respondent sought leave to bring a motion on an urgent basis to address her concerns with respect to the level of security for the children during supervised access visits with the applicant, in particular at the matrimonial home.

[2] The motion was returnable on April 12, 2016. The parties were already scheduled to proceed to a case conference on April 20, 2016. The motion was dismissed because the respondent did not satisfy the Court that the matter was “urgent” within the meaning of Rosen v. Rosen, 2005 ONSC 480.

Positions of the Parties

[3] The applicant’s position is that he was entirely successful in his response to the motion and is therefore entitled to his costs of the motion. He seeks costs on a partial indemnity basis to the date of his offer to settle and on a substantial indemnity basis thereafter.

[4] The applicant relies on the following:

• The presumption set out in rule 24(1) of the Family Law Rules, O.Reg. 114/99 that a successful party is entitled to their costs of a motion;
• The three fundamental purposes of modern costs rules identified by the Ontario Court of Appeal in their decision in Fong v. Chan (1999), 46 O.R. (3d) 330 at para. 22 (as quoted in Serra v. Serra, 2009 ONCA 395, 2009 CarswellOnt 2475, at para 8);
• The offer to settle made on his behalf on March 22, 2016, which set out the terms pursuant to which the applicant was prepared to continue to have the children attend their access visits with the applicant pending the outcome of the case conference on April 20, 2016; and
• A number of the ‘costs factors’ including: (a) the importance, complexity, or difficulty of the ongoing dispute between the parties; and (b) the unreasonable behaviour of the respondent throughout the litigation.

[5] The respondent’s position includes that by virtue of the wording of my endorsement on the substantive issues, the success on the motion was divided. In addition, the respondent submits that it is the applicant who acted unreasonably throughout the proceeding; the parties have similar incomes as a result of which neither party will be negatively impacted if costs are reserved to be decided at a later date; and the criminal charges pending against the applicant support a determination that costs be reserved to a later date. The respondent requests that an award of costs be made in her favour.

Factors

[6] The factors to be considered when fixing costs in a family law matter are set out in Rule 24 of the Family Law Rules. The factors include the presumption that the successful party is entitled to costs; the importance, complexity or difficulty of the issues; the reasonable or unreasonable behaviour of a party; any bad faith conduct by a party; offers to settle; and the reasonable expectations of the losing party.

[7] In dealing with the amount of costs, consideration is to be given to the scale on which costs are awarded, the hourly rates in relation to the Information to the Profession, time spent, and the principle of proportionality.

Analysis

[8] In their respective costs submissions, both parties identify that this matter is one of high conflict. They both submit that the matter is one of importance, complexity and difficulty. That submission may be accurate with respect to the substantive issues in the litigation per se. However, the only issue before me was whether the respondent was entitled to proceed with a motion on an “urgent” basis. In my view, that issue was neither complex nor difficult.

[9] The two-part test from Rosen to be applied in determining the substantive issue was straight-forward. As I identified in my April 15, 2016 endorsement, the motion was before me on April 12 leaving only five sitting days prior to the April 20 case conference. I found that there was no evidence on behalf of the respondent as to any efforts made by her or on her behalf to resolve her concerns with respect to the security of her children pending the parties attending the April 20 case conference.

[10] I also found that the matter was not “so extreme that the court must intervene immediately” (i.e. the alternate test in Rosen). Again, in my view, that issue was neither complex nor difficult given the timing of the motion in relation to the timing of the case conference.

[11] Each of the parties has included in their respective costs submissions detailed descriptions of unreasonable behaviour on the part of the other. The vast majority of the details are unrelated to the specific motion before me.

[12] I find the offer to settle dated March 22, 2016 made on behalf of the applicant and the statements made in that offer to be significant factors in determining the issue of costs on this motion. The offer was made in an effort to “avoid an emergency motion” dealing with the respondent’s alleged cancellation of supervised access visits on an ongoing basis. In addition, the applicant offered, on a without prejudice basis, to suspend the supervised access visits at the matrimonial home pending the parties’ attendance at the April 20, 2016 case conference. The applicant was prepared to limit the access visits to the ‘SDRC’ location. In concluding his March 22, 2016 letter, counsel for the applicant said, “this is a complicated file and the parties must both offer some concessions if we are to avoid continuing emergency motions.” Had that offer been accepted, the motion before me would not have been necessary.

[13] In their decision in Fong, at para 22, the Court of Appeal identified three fundamental purposes of modern costs rules: (1) providing partial indemnification to successful litigants; (2) encouraging settlement; and (3) discouraging and sanctioning inappropriate behaviour by litigants.

[14] Having considered all of the factors relevant to the matter of costs, including those discussed in detail above, I find that the applicant is entitled to his costs of the motion.

Fixing Costs

a) Scale of Costs

[15] In my view, the offer to settle made by the applicant fully addressed the respondent’s concern with respect to the security of the children when having access visits with their father at the matrimonial home. As a result, I find that the applicant is entitled to his costs of the motion on a partial indemnity basis to the date of the offer to settle and on a substantial indemnity basis thereafter.

b) Amount of Costs

[16] The applicant seeks costs totaling approximately $25,425 based on costs in accordance with the partial indemnity scale to the date of the offer to settle and substantial indemnity costs from the date of the offer to settle forward. Partial indemnity costs are said to be based on 60 per cent of the actual hourly rates charged by timekeepers. Substantial indemnity costs are said to be based on 80 per cent of the actual hourly rates charged by timekeepers. The total of $25,425 is broken down as follows:

Partial indemnity fees (to date of offer) $ 7,550 Substantial indemnity fees (post-offer) $ 14,560 Disbursements $ 395

[17] HST is over and above the figures listed above and does not need to be particularized at this point.

[18] In the submissions of the respondent, she identifies that the solicitor-client fees she incurred for the motion total slightly in excess of $17,000 – with HST to be added to that figure and disbursements over and above that amount. I note that the hourly rate charged by senior counsel for the respondent is $395 and by a student is $120.

[19] The hourly rates claimed for both senior and junior counsel on behalf of the applicant are reasonable: (a) $300 per hour for Mr. Dawn who has 25 years of experience; and (b) $150 per hour for Mr. Cory who has three years of experience.

[20] However, if the figures for fees requested on behalf of the applicant are converted to solicitor-client fees they represent a total of $30,783 ($12,583 + $18,200). I find that the fee portion of the applicant’s bill of costs is well in excess of the reasonable expectations of the respondent.

[21] In reviewing the bill of costs, I note that senior counsel identifies in excess of 40 hours of time spent in communication with his client – including correspondent, meetings, et cetera. It is difficult to comprehend that more than a week’s worth of time (5 days at 8 hours per day) was spent in dealing with the applicant exclusively in preparation for this motion. I also note that both senior counsel and junior counsel spent a significant amount of time in reviewing legal authorities and documentary evidence on the matter – approximately 20 hours for senior counsel and in excess of 10 hours for junior counsel.

[22] In response to the motion the applicant’s affidavit was six pages and 26 paragraphs in length. It is difficult to comprehend that a total of 70 hours of communication, meetings, review of motion materials, and drafting was required to prepare that affidavit.

[23] The counsel fee requested with respect to preparation for and appearance at the return of the motion is $2,160 (based on 9 hours of senior counsel’s time at the substantial indemnity rate). Counsel for the applicant was well-prepared on the return of the motion and demonstrated detailed knowledge of the file. I find that the fees requested for that aspect of the motion are reasonable.

[24] I have considered the relevant factors and the particulars of the bill of costs and conclude that a reasonable amount for fees is $15,000. I arrive at that figure by allowing $4,000 for the partial indemnity fees to the date of the offer to settle and $11,000 for the substantial indemnity fees for the period subsequent to the offer to settle.

[25] The disbursements claimed of $395 are reasonable.

[26] In summary, the applicant’s costs are fixed as follows:

Fees $ 15,000.00 Disbursements $ 395.00 HST (fees and disb.) $ 2,001.27 Total $ 17,396.27

[27] The respondent shall pay to the applicant his costs of the motion heard on April 12, 2016 in the amount of $17,396.27.

Madam Justice Sylvia Corthorn Date: October 12, 2016