Harit v. Harit, 2016 ONSC 7129

Court File and Parties

CITATION: Harit v. Harit, 2016 ONSC 7129

COURT FILE NO.: FC-12-3056-0

DATE: 2016/11/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nikhilesh Harit, Applicant

AND

Jaspreet Harit, Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Brian Ludmer, for the applicant

Richard P. Bowles, for the respondent

HEARD: Written submissions

RULING AS TO COSTS

corthorn j.

1The parties were before me on August 11, 2016 for variation of an interim order. Both parties sought the removal or suspension of the requirement that the applicant father’s access visits with the parties’ two children be supervised. On his motion, the father requested only an order removing or suspending the supervision requirement. On her cross-motion the respondent mother sought an order varying the existing access schedule in addition to the removal of the requirement for supervision of the access visits.

2The motion and cross-motion were heard approximately 6.5 weeks prior to the date on which the matter was scheduled to go to trial, with the issues to be determined including custody and access. In light of the proximity of the date of trial, I declined to vary the access schedule. I ordered that the requirement for supervision be suspended pending further order of the Court. My order included a number of ancillary terms to facilitate the suspension of supervision on a gradual basis.

3With respect to the matter of costs, I found that the father had been successful on his motion and the mother unsuccessful on her cross-motion. I requested that the parties file submissions with respect to the scale and quantum of costs for the motion and cross-motion in the event they were unable to agree upon same. The parties did not reach an agreement. I received written submissions with respect to costs.

4The father seeks his costs on a full indemnity basis. He requests full indemnity costs with respect to four separate events, all of which occurred in 2016. Those events are a case conference held on February 9; a case conference held on May 3; a case conference held on May 31; and the motion heard in August. In total, the father is seeking costs in the amount of $63,662.67.

5The mother’s position is that the only costs to be addressed at this time are those incurred for the May 31 case conference and the August 11 motion. The mother is seeking her costs of the May 31 case conference, fixed in the amount of $1,500. It is her position that the father is entitled to partial indemnity costs of the motion and cross-motion in the range of $3,000 to $5,000.

The Case Conferences

6I agree with the mother that the only costs to be addressed at this time are those for the May 31 case conference and August 11 motion and cross-motion.

7Justice Kershman was case managing this matter. The endorsements made by him in February and May are reflective of the steps taken by him to ensure that (a) this high conflict case proceeded to trial as quickly as possible and (b) issues requiring interim relief were resolved by way of negotiated settlement if possible and, if not, by way of a timely motion date.

8There is nothing in the case conference endorsement dated February 9 which addresses the costs of that event. The only reference to costs is made at paragraph 11 of the endorsement in which Justice Kershman ordered as follows, “In the event that access does not resume as previously ordered, costs sanctions will be considered by this Court.” It is my view that the wording of that endorsement does not compel the Court to consider the costs of the event upon determination of the motion and cross-motion with respect to access. I exercise my discretion not to address the costs of that event at this time. It remains open to the parties to make submissions to another judge, including the trial judge, with respect to costs of that event.

9In his endorsement from the case conference conducted on the 3rd of May, Justice Kershman specifically ordered that “[c]osts of today reserved to Trial Judge.” As a result, it is not within my discretion to address costs of that event.

10It appears that the case conference scheduled for the 31st of May was specifically in follow-up to the matters addressed at the earlier case conference in May. In his endorsement dated May 3, Justice Kershman addressed disclosure issues, the preparation of a report by Dr. Leonoff (a report that when produced, the mother relied on in support of her position on the cross-motion), the access schedule, and scheduling the motion with respect to access for the 11th of August. He also set a date for a settlement conference (August 23).

11In his endorsement dated the 31st of May, Justice Kershman ordered, “[t]he issue of costs of today is put over to the motion judge on August 11, 2016; if a motion is not brought, then these costs are put over to the Trial Judge.” It is clear that I am to address costs of the case conference conducted on May 31, 2016.

Amount Requested for Costs

12The total amount the father is seeking for costs − including the February 9 and May 3 case conferences − is $63,662.67. That amount is on a full indemnity basis and represents the fees, disbursements, and HST incurred by the father for the services of three law firms. The father was represented by Dolgin Marshman Law at the time of the case conference in February. The father was represented by his current counsel Mr. Ludmer at the time of the May 31 case conference. However, an agent from Borden Ladner Gervais attended that event for Mr. Ludmer.

13As between the three law firms, the total of $63,662.67 is broken down as follows:

Dolgin Marshman Law (Feb. 9) $ 12,562.70 Borden Lander Gervais (May 31) $ 3,727.87 LudmerLaw (May 3 & Aug. 11) $ 47,372.12

14For the reasons set out above, the only costs to be considered are the $3,727.87 for the attendance of an agent from Borden Ladner Gervais (“BLG”) at the case conference on May 31 and the portion of the LudmerLaw account for the motion heard in August.

Analysis and Conclusion

a) Case Conference – May 31, 2016

15The May 31 case conference was part of Justice Kershman’s continuing case management of the file. It was required not only to address the terms of access but to allow for follow-up with respect to a number of the terms ordered in the endorsement from the case conference on the 3rd of May.

16In my view neither party achieved particular success as part of the event. The submissions on behalf of the mother are that she was successful at the event because the father’s request for an order suspending or removing the requirement for supervision of access visits was not granted. However, I note that one of the reasons why no such order was made is because the mother had, shortly before the date of the case conference, contacted the Children’s Aid Society (“the Society”) about the father and a file had been opened. That file was closed by early August with no protection concerns having been identified. In addition the Society indicated that it would require more than contact from the mother before opening a file again.

17I also note that Mr. Bowles appeared as agent for the mother at this case conference. In his endorsement, Justice Kershman addressed that arrangement and ordered that Mr. Bowles could only represent the mother in the future if he were retained as counsel. Mr. Bowles was prohibited from appearing again as the mother’s agent. In light of her arrangement with Mr. Bowles for this event, it would in my view be inappropriate to award costs to the mother even if I were inclined to order costs in her favour (which I am not).

18For the reasons set out above, I am also not inclined to order costs of this event in favour of the father. I would not, in any event, order costs on a full indemnity basis as claimed nor would I order costs on a substantial indemnity basis. If the father was entitled to his costs of this event it would be on a partial indemnity basis.

19In the event I am wrong in declining to award the father his costs of this matter, in my view the award of costs in favour of the father would be on a partial indemnity basis calculated as follows.

20The costs claimed on behalf of the father for this event are based on the solicitor-client account delivered by BLG to Mr. Ludmer’s office. The account is dated August 4, 2016 and is broken down as follows:

Fees $ 3,249.00 Disbursements $ 50.00¹ HST $ 428.87

21The account provides full particulars of the work done by each of the timekeepers, who include senior counsel and three other individuals. At least one of those individuals is, on the basis of the hourly rate charged, associate counsel. It is not clear whether each of the other two individuals who worked on the matter is also associate counsel or is a litigation clerk.

22From my review of the dockets, it is clear that by virtue of electing to be represented by an agent on May 31, there was time spent for the introduction of the matter by Mr. Ludmer’s office to BLG. In addition there was time spent in reviewing the file that might not have been required had an agent not attended the case conference. In summary, there was some duplication of effort by reason of the reliance on an agent.

23It is clear from the BLG account and from the time dockets for the work done by LudmerLaw that BLG received the case conference briefs of the parties and prepared for the attendance at the case conference. I do not take issue with the hourly rates charged on a full indemnity basis or as to the amount of time docketed for that work.

24Having reviewed the dockets and eliminated the duplication of effort and any other time for which an opposing party is not reasonably reliable, I find that the fee portion of partial indemnity costs is based on the solicitor-client fees charged in the amount of $2,250. That amount is multiplied by 60 per cent to arrive at a figure of $1,350. Added to that is the disbursement of $50 for the LPIC Levy Surcharge, which I allow. When HST is applied both to the fee amount and the $50 disbursement, the total is $1,582.²

25That amount is in keeping with the $1,500 requested on behalf of the mother.

26In summary, if I am incorrect, and one of the parties is entitled to his or her costs of the May 31 case conference, the sum of $1,500 is reasonable for costs on a partial indemnity scale.

b) Motion – August 11, 2016

27My endorsement on the motion includes a determination that the father is entitled to his costs of the motion. Therefore the issues to be determined are the scale on which costs are awarded and the quantum of costs payable by the mother to the father.

i) Scale

28The father seeks his costs on a full indemnity basis. In support of that position he relies on a number of decisions in which is expressed a general principle that “the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.”³

29Alternatively, the father seeks his costs on a substantial indemnity basis relying on a number of the factors enumerated in Rule 24 of the Family Law Rules.⁴ In summary, the factors relied on by the father include:

• Conduct on the part of the mother, which the father submits was unreasonable or in bad faith. The conduct relied upon includes the mother’s failure to comply with orders and endorsements over time; the mother’s ‘engineering’ of circumstances so that supervision could not come to an end in January 2016 as had been expected; and the mother’s involvement with the access supervisors resulting in frequent turnover. The father says that the end result of the mother’s conduct was to prolong the period during which access was supervised both at significant monetary cost to the father and upset to the father and the children.
• The contents of the father’s offers to settle dated August 9, 2016. It is the father’s position that the outcome of the motion met his offers to settle “in all material respects”.⁵ Each of the offers was capable of acceptance independent of the other. One of the offers to settle provided for the father’s access visits to continue as per the schedule set out in the order of Justice Laliberté dated September 2013, Another of the offers to settle provided that effective August 11, 2016 “there shall no longer be a requirement for the [father’s] access with the children to be supervised.”
• The respondent’s offer to settle, dated August 10 provided for supervision to be removed but, as pointed out by the father, also called for a significant change in the schedule for the access visits. The terms of the offer were not severable. A change in the schedule was not an issue for the motion, making the offer incapable of acceptance by the father.
• The failure of the mother to consent, at the case conference on May 31, to an order that supervision be suspended or removed − in particular when she was given an opportunity to do so.

30The mother’s position is that the father is entitled to his costs of the motion and cross-motion on a partial indemnity basis. The mother submits that she was not required to consent, on May 31, to the requirement for supervision being suspended or removed; she was entirely within her rights to litigate the issue in particular given that a report from Dr. Leonoff was pending at the time and in light of the recommendations of Dr. Leonoff once his report was available (early August).

31With respect to her alleged unreasonable and/or bad faith behaviour, the mother’s position is that my decision was not premised on any conduct on her part but rather on ‘the best interests of the children’. The mother’s position is that the father is, by raising the matter of conduct in the context of costs, attempting to re-argue substantive issues that were before me on the motion.

32The parties are in agreement that to the extent conduct is considered, if at all, only that conduct which occurred after the issue determined arose is to be considered.⁶

33In my view the time frame during which the conduct of the parties is to be considered is from January 2016, when it was originally anticipated that the requirement for supervised access would come to an end − gradually or otherwise. In his May 7, 2015 endorsement, Justice Kershman ordered that “[s]uspension of the supervision of access condition should be gradual and not considered for at least six months from April 14, 2015.” I relied on that aspect of Justice Kershman’s endorsement in determining the substantive issues on the motion and cross-motion.

34I agree with the father, that the delays encountered from January 2016 forward in addressing the suspension of the requirement for supervision are the result of conduct on the part of the mother. As of January 2016, the mother was refusing for a period to permit the father to see the children at all. In February 2016, Dr. Leonoff recommended that the father “register two ‘clean’ cycles” of supervised visits as the trigger for the suspension of the requirement for supervised access.⁷ I find that the father’s ability to register two clean cycles was impeded by the conduct of the mother. It is the uncontradicted evidence of the father that in the 16-week period from January to May 2016, the children saw their father on one occasion.

35As the May 31 case conference approached, the mother contacted the Society requesting that they investigate a problem with the father’s conduct with respect to the children. In the end no protection concern was identified by the Society. In addition, the Society determined that it would no longer respond to a complaint initiated by the mother based solely on information from her. In my endorsement, I drew an inference that the uncertainty of an open file with the Society contributed to the continuation of requirement for supervision of access visits beyond the May 31 case conference.

36In summary, I find that it was the mother’s refusal to permit the father, other than on one occasion, from January to May, 2016 and her contact with the Society which resulted in the delay of the determination as to when the requirement for supervision would be suspended or removed.

37As of August 11, when the motion and cross-motion were argued, the parties consented to the suspension of the requirement for access to be supervised. They were unable to agree upon the terms pursuant to which the supervision requirement would be suspended. In addition, the mother sought to change the access schedule.

38In the end, I ordered that the parties follow the terms prescribed by Justice Kershman in May 2015 for the suspension of supervised access − in particular that it be removed gradually.

39In summary, I find that the mother’s conduct from January through May 2016 resulted in the delay in the issue of suspension of supervision being determined. That delay served to add to the significant monetary expense already incurred by the father for the services of the supervisors.⁸

40It is my understanding that an issue to be determined at trial is how the expenses incurred for the services of the supervisors will be apportioned between the parties. Regardless of the potential for that expense to be apportioned, I have, in determining the scale on which costs are payable, taken into consideration that the mother’s conduct resulted in additional expense being incurred for the service of supervisors.

41For the reasons set out above, I find that the father is entitled to costs on a substantial indemnity basis. Costs on that basis “approach full recovery” and are in keeping with the general principle cited above in paragraph 28.

ii) Quantum

42The bill of costs submitted by Mr. Ludmer is in the form of dockets which run from April 18 to August 31, 2016. The dockets are not broken down in any form so as to assist in identifying the event, if any at all, to which each of the dockets relates. I was required to review the bill of costs and attempt to discern which of the dockets relate to the motion and cross-motion heard in August.

43The timekeepers whose dockets are included in the bill of costs are Mr. Ludmer, a senior law clerk, a law clerk, and a litigation assistant.

44I make the following general comments with respect to the time docketed and for which costs are claimed:

• The work with respect to the motion appears to have commenced on July 28, 2016 with the first relevant entry being that of the law clerk.
• The senior law clerk was at times assisted by the law clerk. I find that there was duplication of effort as between them given the total time spent on the tasks for which such assistance was provided. As a result, I have not allowed for any of the law clerk’s time where she provided assistance.
• There are numerous dockets for “Email from/to client” with no descriptor whatsoever. While those entries may relate to the work on the supporting affidavits, I am not in a position to draw an inference in that regard. This is a high conflict matter and the solicitor-client communication could have related to any number of issues with which the parties were dealing over time.
• The dockets include time charged by a litigation assistant. Whether or not a lawyer charges his or her client for an assistant’s time is a matter between the lawyer and client. However, I am of the view that it is not appropriate in the circumstances of this case − if at all − to impose that expense on an opposing party.
• Drafting of the notice of motion, affidavit, and factum was a task shared by Mr. Ludmer, the senior law clerk, and the law clerk. The total time in that regard is as follows: 15.6 hours for the law clerk,⁹ 19.6 hours for the senior law clerk, and 12.3 hours of Mr. Ludmer’s time. In total, 47.5 hours of lawyer or clerk time was spent on the notice of motion, affidavits, factum, and motion record.
• While the use of clerks to carry out some of the work enhances the cost-effectiveness of the approach, because of the lower hourly rates at which they charge their time, in my view the total time docketed by the senior law clerk and law clerk in this matter is excessive. I allow 24 hours of clerk time (as opposed to their docketed total of 35.1 hours). Given that their time is relatively evenly split, I have used the average of their respective hourly rates in arriving at a total for the solicitor-client fees upon which the costs awarded are based.¹⁰
• Leaving aside the docket entries, the time charged is excessive taking into consideration the volume of case authorities that were filed on behalf of the father. In my view the number of cases cited was excessive and demonstrated a lack of focus with respect to the particular issue to be addressed − the suspension or removal of supervision of access visits.
• The time charged to the client for counsel’s appearance on the motion is 11.5 hours, includes travel between Toronto and Ottawa, and includes the time spent in Ottawa because of a delayed return flight. There is nothing to preclude a party from retaining out-of-town counsel. However, it is not reasonable in the circumstances of this case to impose the fees charged for travel time on the mother. In all of the circumstances, a counsel fee of $2,500 on a full indemnity basis is reasonable for the attendance on the motion.

45As noted in section (a) above, I find the hourly rates charged by counsel and the law clerks to be reasonable. I have used $375 per hour for Mr. Ludmer and the average of $137.50 for the law clerks.

46Based on all of the above, I calculate the full indemnity fees upon which costs are based to be $10,412.50.¹¹ I allow $9,370 as the fee portion of substantial indemnity costs awarded.¹²

47The disbursements listed and identifiably associated with the August 11 return date for the motion include external secretarial services charged at $150, a process server utilized for service and filing charged at $267, and a courier fee of $92.03. Each of those items attracts HST over and above the amount specified.

48I find as follows with respect to the disbursement items claimed:

• In the absence of evidence explaining the use of external secretarial services there is no basis for imposing on the mother the expense incurred for those services.
• The service and filing fee appears to me to be somewhat excessive. However, it may include service of documents on a number of occasions given the dates of the various supporting affidavits, the factum, etc. As a result, I allow the disbursement for this item.
• There is no explanation for the courier charge in addition to a charge for service and filing. I draw an inference and find that the courier charge is the result of counsel for the father being located in Toronto and having to send materials to the process server in Ottawa to carry out service and filing of documents. I therefore disallow that item.

49I note that there is no airfare expense claimed as a disbursement for the August 11 attendance on the motion. Regardless, for the reasons set out above, I would not allow such an expense as part of costs on the motion.

50In summary, the disbursements allowed are restricted to the expense for the process server at a total of $301.71 ($267 plus HST of $34.71).

Costs Submissions

51No request is made on behalf of the father for costs associated with the preparation of the submissions upon which I have based the award of costs. The only dockets provided with respect to costs submissions are those for the initial set of submissions and authorities on behalf of the father. Those submissions were returned to counsel for the father because (a) they did not comply with the requirements of my August 11, 2016 endorsement and (b) included tens of cases, which I found to be excessive given the issues to be addressed in determining the award of costs.

Disposition

52In summary, the mother shall pay to the father his costs of the motion and cross-motion heard on August 11, 2016 on a substantial indemnity basis in the amount of $10,889.81.¹³ The award of costs bears interest at the rate prescribed by the Courts of Justice Act¹⁴ from the date of the endorsement forward.

Footnotes

1. 1The only disbursement is the Levy Surcharge with respect to the Lawyer’s Professional Indemnity Company.
2. 2$1,582 = $1,350 + $50 + (.13 x ($1,350 + $50))
3. 3See, for example, the decision of Justice Perkins in Biant v. Sagoo, 2001 28137 (ON SC), 2001 CarswellOnt 3315 (S.C.J.), 20 R.F.L. (5th) 284, at para. 20 citing Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.), which in turn cites Mallory v. Mallory (1998), 1998 29653 (ON SC), 35 R.F.L. (4th) 222 (Ont. Gen. Div.).
4. 4O.Reg. 114/99.
5. 5Applicant’s Costs Submissions, para. 6.
6. 6See, for example, the decision in Caldwell v. Caldwell 2007 CarswellOnt 1681 (SCJ).
7. 7Report of Dr. Leonoff dated February 2016 as referenced at para. 46 of my August 11, 2016 endorsement.
8. 8The father’s uncontradicted evidence was that since May 2015 he had paid in excess of $27,000 for the services of the supervisors.
9. 9The hours identified exclude any dockets for the law clerk related to assistance provided to the senior law clerk.
10. 10The average hourly rate for the senior law clerk and the law clerk is $137.50 (($150 + $125)/2).
11. 11(24 x $137.50) + (12.3 x $375) + $2,500.
12. 12$9,370 = ($10,412.50 x 0.6) x 1.5. This is the arithmetic formula used to determine the amount of substantial indemnity fees payable.
13. 13$10,889.81 = ($9,370 + $267) + 0.13 x ($9,370 + $267).
14. 14R.S.O. 1990, c. C.43.