CITATION: Vieira v. Dos Santos Triollo 2017 ONSC 1224
COURT FILE NO.: FC-16-2257
DATE: February 24, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marnei Vieira
Applicant (“Father”)
Priscila Dos Santos Trillo
Respondent (“Mother”)
Allan Hirsch, counsel for the Applicant
Selim James Levy , counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
shelston j.
Overview
[1] The sole issue in this application was the father’s request to have the child returned to Brazil. The mother opposed this request and wanted the child to stay in Ottawa.
[2] On December 22, 2016, I ordered that the child, Luiz Felipe dos Santos Vieira, be returned to his habitual residence in Santa Catarina, Brazil on or before January 6, 2017.
[3] The father now seeks costs from the mother in the amount of $13,500, being approximately 90% of full recovery costs.
[4] The mother’s position is that the father should be awarded costs in the amount of $3,500.00.
The Family Law Rules
[5] Under 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.
[6] Rule 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.
[7] The factors to be considered in assessing costs are set out in Rule 24 (11) of the Family Law Rules which include:
(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.
[8] In Serra v. Serra, 2009 ONCA 395, the Court held that family law costs rules are designed to foster three important principles:
(a) To partially indemnify successful litigants for the cost of litigation;
(b) To encourage settlement; and
(c) To discourage and sanction inappropriate behaviour by litigants.
[9] 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 (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)
Analysis
Successful Party
[10] The mother concedes and I find that the father was a successful party. He is presumptively entitled to his costs.
The importance, complexity or difficulty of the issues
[11] The issue of returning the child to Brazil was very important to both parties. The issue was not complex but was difficult. Both parties submitted extensive affidavit material and jurisprudence to support the various positions. Both counsel were extremely thorough in their presentation of their client’s respective positions.
The reasonableness or unreasonableness of each party’s behaviour
[12] I find that the father acted reasonable in commencing an application for custody in Brazil, then filing his application under the Hague Convention through the Brazilian Central Authority and proceeded promptly on that application.
[13] The father submits that the mother’s conduct was unreasonable. I do not find that the mother’s actions or legal arguments can be equated to “bad faith” or being unreasonable behaviour. I do not find that the mother’s argument about the child being at risk to psychological and physical harm were made to deceive or mislead the court. Further, the mother’s argument that the child did not want to return to Brazil was supported by the Voice of the Child’s Report. However, I rejected these arguments based on the nature of the child’s objections.
The lawyer’s rates and disbursements
[14] The mother concedes that the father’s counsel hourly rate of $136.50 an hour (legal aid rate) to be very reasonable considering he has 25 years of experience and his normal hourly rate is $280 an hour. I agree.
[15] The disbursement of $1,090.68 for the Voice of the Child’s Report is also reasonable.
The time properly spent on the case
[16] Counsel for the father has provided a detailed Bill of Costs indicating that he spent a total of 66 hours from April 15, 2016 to January 25, 2017 totaling legal fees of $9,004.35. In this matter there was one full day of argument and significant time in preparing affidavit material and a factum. I find that 50 hours would be a reasonable amount of time to spend on this matter totalling $6,825.00.
[17] The father’s counsel incurred disbursements of $285.65 which are reasonable in the circumstances.
[18] The cost of $1,090.00, inclusive of HST, for the Voice of the Child Report was reasonable.
[19] Counsel for the father also submits that the legal fees incurred by the lawyers in Brazil amounted to $3,362 in Canadian funds with disbursements of $1,089.50 in Canadian funds (representing translation fees paid and couriers). Regarding the legal fees, there is no breakdown to allow me at ascertain the time spent on each task.
Offers made
[20] No offers to settle were submitted by either party. The mother submits that the father should have submitted an offer to avoid the litigation. However, the mother did not submit any offer.
[21] This matter was all or nothing. Either the child was staying in Canada or going back to Brazil. The mother advises that subsequent to my decision the child returned to Ottawa, based on a written agreement by the parties, to live with the mother. I have not considered this change in circumstances as my cost award relates to the events up to the date of my decision.
Other factors
[22] The mother did not provide a copy of her own bill of costs to allow the court to compare what she was charged against the costs claimed by the father.
Disposition
[23] I find that the father shall have his costs set out herein as the sum of $6,000 for legal fees for his Ontario counsel, $1,090.68 for the Voice of the Child Report, the sum of $1,000 for his Brazilian solicitors and the sum of $1,089.50 incurred by the Brazilian solicitors for disbursements for a total of $9,180.18.
[24] I order the mother to pay the father the sum of $9,180.18 plus HST of $780 for the Ontario Legal Fees for a total of $9,960.18 payable forthwith.
Shelston J.
Released: February 24, 2017
CITATION: Vieira v. Dos Santos Triollo 2017 ONSC 1224
COURT FILE NO.: FC-16-2257
DATE: February 24, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marnei Vieira
Applicant
– and –
Priscila Dos Santos Trillo
Respondent
costs endorsement
Shelston J.
Released: February 24, 2017