CITATION: Abu-Zahra v. Hendy, 2016 ONSC 7244

COURT FILE NO.: FC-15-170

DATE: 2016/11/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NADIA ABU-ZAHRA

Applicant

– and –

ASHRAF HENDY

Respondent

Emily Comor, for the Applicant

Gonen Snir, for the Respondent

HEARD: In writing

COST Endorsement

Overview

1On September 19, 2016 I ordered, on a temporary and without prejudice basis, that the child, Nora Farrah Hendy, born July 22, 2011, would attend École Trille des Bois Elementary School and daycare.

2The applicant seeks costs in the amount of $8,946.29 inclusive of disbursements and HST while the respondent seeks costs in the amount of $6,483.38.

3Both parties submit that they were successful on the motion and that they are entitled to their costs.

4The applicant brought a motion seeking a final order that her daughter, Nora, attend École Trille des Bois in Ottawa and the after school daycare program at that school. The respondent opposed such an order and requested that the child attend École Élémentaire Francojeunesse (“Francojeunesse”).

5On December 21, 2015, Madam Justice Warkentin, with the consent of the parties, issued on an interim without prejudice basis, an order dealing with parenting and that the child would attend Francojeunesse as that was the French public school in the school district where the matrimonial home was located and where both parties and the child resided.

6The parties were scheduled to proceed to trial in the September 2016 sittings but were not reached.

The Family Law Rules

7Under 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.

8Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) The parties’ 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.

9Rule 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.

10Rule 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.

11Justice Aston in Delellis v. Delellis, 2005 CanLII 36447, (Ont. S.C.) stated at para. 95:

It is important to reiterate that when the court is fixing costs, it is not undertaking a simple mechanical exercise. Such an exercise would be inappropriate and in fact undesirable.

12The time properly spent by the Applicant preparing for and attending on the motion is not to be reimbursed dollar for dollar. In Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), the Court held that the Court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

Analysis

Successful Party

13The applicant sought a final order that the child be placed in the school where the applicant and child had moved to in July 2016. As the matter was proceeding to trial, I declined to make a final order and I made a temporary order.

14However on the issue of the temporary order, I found that the applicant was the successful party as my decision grants her the relief that she sought her notice of motion albeit on a temporary basis. The respondent opposed the applicant’s motion and he was not successful. Being the successful party, I find that the applicant is entitled to costs.

The importance, complexity or difficulty of the issues

15The motion was very important to both parties. The child was not going to school until the parties could resolve which school she would attend. As a result of this impasse, the child did not attend school for almost three weeks.

16This matter was not complex but was made or difficult by the issues raised by the respondent. The position taken by the respondent and the affidavit material filed by him caused me to question his credibility. As referenced in my endorsement, I found that his evidence was contradictory, that he did not take steps to register the child in his preferred school or daycare, that he only registered her on September 7 and that he attempted to fundamentally vary his access under the guise of the motion for school.

The reasonableness or unreasonableness of each party’s behaviour

17By July 2016 it was clear that the applicant was going to register the child in a new school. By September, there had been six notifications to the respondent that the child was going to change schools.

18However, the applicant did not have the right to unilaterally change the school without the consent of the father or a court order. I do not condone the applicant’s actions of registering the child then applying to court for confirmation. The applicant should have applied for judicial relief in advance of the September motion. While I do not find any bad faith on behalf of the applicant, she should not have acted without court approval.

19With respect to the respondent, his argument was that he was surprised that the applicant had changed the child’s school without his consent, I did not find that story to be credible considering the six occasions from April 2016 when the issue that the child was changing schools was raised.

20Despite difficulties in both parties’ actions in this litigation, I did not find that their behaviour rises to the level of being unreasonable.

The lawyer’s rates and disbursements

21I find that the applicant’s counsel hourly rate of $310 to be reasonable based on her 22 years of experience. With respect to the disbursements of $153.76, I agree that they are reasonable especially considering the fact that the respondent served his responding material by email.

The time properly spent on the case

22The applicant’s Bill of Costs indicates that she spent 25.6 hours on communicating with her client, researching, preparation of motion documents, review of motion documents, preparing for and attending the motion and reviewing the decision and preparation of cost submissions.

23I do not find that all of the time docketed was required including 2.3 hours of research on a motion to change the school.

Offers made

24Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum as set out in Osmar v. Osmar (2000), 2000 CanLII 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).

25On September 2, 2016, the applicant’s counsel faxed a letter to the respondent’s counsel enclosing a consent and draft order which provided that the child attend École Trille des Bois and requiring the respondent to pay the applicant’s costs in an amount to be determined. The offer was contained in a letter and was not in the form of a formal offer pursuant to the Family Law Rules. However, I can consider the offer was made irrespective of the fact that it was not made in the proper form. I note that the offer was made on September 2, 2016 and that the appearance before me was on September 15, 2016.

26I also note that the respondent made no offer to settle.

Disposition

27I do not find that the applicant is entitled to costs on a substantial indemnity basis as I made a temporary order rather than a final order as requested by the applicant and that she should have applied to court before changing the child’s school.

28I find that a reasonable amount for legal fees would be $4,000 plus HST of $520 plus disbursements of $153.76 for a total of $4,673.76.

29Consequently, I order the respondent to pay to the applicant the sum of $4,673.76 within 60 days.

Shelston J.