Court File and Parties

Court File No.: FC-15-2447 Date: 2016/10/07 Superior Court of Justice - Ontario

Re: Salwa Elsaid-Yosef, Applicant And Wael Shabana, Respondent

Before: Justice A. Doyle

Counsel: Suzanne Y. Cote, for the Applicant Marc J. Coderre, for the Respondent

Heard: In writing

COSTS ENDORSEMENT

Overview

[1] On August 30, 2016, the Court rendered the following interim order:

(1) Commencing May 1, 2016, the respondent husband will pay to the applicant wife the monthly amount of $5,831 as child support and $6,630 as spousal support;

(2) The husband will continue to pay s. 7 expenses of tutoring; swimming; medical, dental, and eye care, daycare; and Kumon. On a quarterly basis, he would provide receipts to the wife and she would be responsible for her proportionate share;

(3) There will be a non-depletion order against the husband’s corporation in the amount of $500,000;

(4) Within 30 days, the husband will disclose any payments and/or loans received from the Pharmacy from April 1, 2015 to present; and

(5) The wife will pay $1,815 to the husband by September 30, 2016.

[2] If the parties could not agree on the issue of costs, they were to provide the Court with written submissions.

[3] Having considered their written submissions, offers to settle, bill of costs and the principles set out in Family Law Rules, O. Reg. 114/99 (the “FLR”) 24, the Court awards costs to the wife in the amount in the amount of $2,500.

Wife’s Position

[4] The wife is seeking full recovery costs in the amount of $6,030.25 inclusive of disbursements and HST.

[5] She states that she had no choice but to bring a motion as the husband was paying support based on a previous court order on an income of $166,800 per year and the recently received income report showed his income was significantly higher, i.e. $485,000 per year.

[6] Her offer to settle was closer to the final result than the respondent’s offer. She offered $5,832 per month for child support, $7,909 for spousal support and that she pay 50% of s. 7 expenses (but not the daycare expense) and the retroactive support issue be reserved to trial. The offer to settle did not include a non-depletion order.

[7] In contrast, the husband offered to settle: $5,831 per month in child support and $4,539 per month in spousal support and that the applicant would pay $539 per month as her contribution to s. 7 expenses.

[8] The wife was also concerned with receiving her equalization payment estimated at $500,000 as, without her knowledge, the respondent had drawn money from his corporation. At the motion, she was successful in obtaining a non-depletion order against his corporation.

Husband’s Position

[9] The husband submits that there was divided success and each party should pay their own costs. The results were as follows:

i) Non depletion order was rendered but the husband did not vigorously oppose this request;

ii) The request for the North Gower Pharmacy financial statements was denied;

iii) The wife was ordered to repay the $1,815 to the husband as a reimbursement of an overpayment;

iv) Initially, the wife refused to pay s. 7 expenses and she then requested that each party pay these expenses directly to third parties;

v) The wife sought retroactive support and this issue was reserved to the trial Judge;

vi) The court ordered $6,630 per month as spousal support while the father offered $4,539 per month and the mother’s offer requested $7,909 per month; and

vii) The wife’s SSAG calculations did not properly incorporate s. 7 expenses.

[10] In addition, the husband acknowledged that he was not paying enough support in light of his income report and he had voluntarily sent $2000 per month in addition to the court ordered support.

Legal Principles

[10] FLR 24(11) sets out the factors to consider in determining costs. The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that the cost rules are designed for the fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation;

(2) to promote the encourage promote and encourage settlement, and

(3) to control behaviour by discouraging frivolous suits if the defences that lack merit.

[11] The Court must also consider offers to settle FLR 18 when considering offers to settle.

Analysis

[11] The Court finds that although each party was successful in some of the issues before the Court, the applicant was more successful on the major issues before the Court, i.e. spousal support and the non-depletion order. Neither party was successful in obtaining a more favourable result than their offer to settle with respect to the quantum of spousal support, but the applicant’s figures was closer.

[12] The Respondent did not address the issue on non-depletion order in his offer to settle. This was a significant issue as the applicant wished to protect and secure her equalization payment owed of $500,000. Given the respondent’s recent activity with his corporation which included lending money and buying property with monies from the corporation, it was reasonable for the applicant to request this order.

[13] Therefore, although he respondent was successful in certain issues, the two important issues were dealt with more in line with what she had offered and hence she should be entitled to some costs.

[14] In determining the quantum of costs, the court considers FLR 24 (11).

(i) The importance complexity and difficulty of the issues:

− Spousal support and being able to obtain support commensurate with his income is important. The court considered the income report and SSAG and the legal costs reflected that there were experts’ reports and calculations to consider which added complexity to the case.

(ii) The reasonableness or unreasonableness of each party’s behaviour in the case:

− The Court does not accept the respondent’s position that the applicant was unreasonable. Although her SSAG’s calculations may not have been totally accurate and she changed her position regarding her contribution to s. 7 expenses, this does rise to the level of the Court finding that she was unreasonable.

(iii) The lawyer’s rates and the time spent on the motion, expenses incurred, in light of the various issues and case law were reasonable. 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;

The applicant’s lawyer has been practicing primarily family law for 25 years and her $200 per hour is extremely reasonable. Her account for the motion is very modest and the time spent on the numerous issues is reasonable.

(iv) expenses properly paid or payable;

− The disbursements of $233.35 for copies, printing and agency fees are appropriate.

[15] Since the applicant had more success on the major issues, a reasonable amount of costs to be ordered is on a partial indemnity basis in the amount of $2,500.

Madam Justice A. Doyle Date: October 07, 2016