Court File and Parties
Court File No.: FC-16-905 Date: 2017/04/13 Superior Court of Justice - Ontario
Re: Sam Himyary, Applicant And: Maha (Mira) Al-Yasiri, Respondent
Before: Madam Justice L. Sheard
Counsel: Applicant - Self-represented Ron Paritzky, Counsel for the Respondent
Heard: Written Submissions on Costs
Endorsement on Costs
SHEARD J.
[1] The applicant father brought this motion for an interim order granting him shared custody and equal parenting time of the parties’ two children. The Notice of Motion asked for other relief and counsel for the respondent mother did not know until the start of the motion that the applicant father wanted to limit argument on his motion to custody and access.
[2] The parties had created and abided by an access schedule that had been in place since March 2016. On the motion, counsel for the respondent mother advised the Court that there was a detailed access schedule to December 2017.
[3] In response to the motion brought by the applicant father, the respondent mother served a cross-motion seeking custody of the children. The mother made it clear in her materials and in argument on the motion that, in her view, the parties had been able to manage the children’s access schedule without a custody order and that she was not vigorously pursuing her cross-motion.
[4] As per my endorsement of February 22, 2017, I dismissed the motion brought by the applicant father, ordered that the status quo continue and that future access be as per the schedule presented on the motion. As the respondent mother was not pursuing her claim for custody, I made no custody order. However, had she sought that order, I would have granted it. I concluded that the respondent mother was entitled to some costs of the motion.
[5] If the parties were unable to agree on costs, they were invited to file written submissions. They did not agree and submissions were filed.
Positions of the Parties
[6] The respondent mother seeks her costs in the amount of $10,525.20. That figure includes $1,140.27 for the costs of preparing written submissions.
[7] The applicant father asserts that the mother’s costs are “extremely high, exaggerated and unreasonable” and that someone with the knowledge and experience of the mother’s counsel should have spent less time. He also takes issue with the scale of costs being sought – 85% of costs incurred after the mother served her offer to settle.
[8] The applicant father also appears to interpret the words “some costs” in the Endorsement to mean a token amount. That interpretation was not intended. As will be seen below, the respondent mother does not seek or receive all of her costs. She is awarded only a portion of the legal fees she has incurred to respond to the father’s motion. Of course, until receiving the costs submissions, the Court did not know of any offers to settle the motion, which must be considered when determining costs.
Offers to Settle: Motion
[9] The respondent mother served an offer to settle signed January 16, 2017. It extended the applicant father’s access somewhat by adding Sunday overnight to Monday and giving him the first option to care for the children if she was required to travel for work overnight and unable to care for the children. If her offer was accepted by 5 p.m. on January 18, 2017, the mother agreed to waive her costs. If accepted after that time, the applicant father was to pay costs of $5,000.00.
[10] The applicant father did not accept the mother’s offer nor did he make his own offer to settle.
[11] I find that the Order made on the hearing was as, or more, favourable to the mother than the mother’s Offer to Settle. For that reason, the provisions of Rule 18(4) of the Family Law Rules, O. Reg. 114/99 (the “FLR”) apply.
Offers to Settle: Costs
[12] In his written costs submissions, the applicant father improperly disclosed offers to settle on the costs issue exchanged by the parties after the release of my decision. The applicant father disclosed that he was prepared to pay costs of $1,500.00. In view of the disclosure to the Court by the applicant father, the respondent mother filed Reply Submissions which disclosed that on February 23, 2017, the respondent mother offered to settle the costs issue by payment to her of $5,000.00 by March 11, 2017. The costs would be fixed at $8,000.00 if they were not paid by March 11, 2017.
[13] While it was improper to disclose these offers to settle to the Court, it appeared unfair to the mother not to read her responding materials. For that reason, I read all the materials submitted to me.
[14] The applicant father did not accept the respondent mother’s offers to settle costs and responded with an offer to pay her $1,500.00. Following the father’s response, the mother advised that the costs of preparing the written costs submissions would be added to the costs that she would be asking the Court to award. The respondent mother offered to give the applicant father until March 3, 2017 to consider, seek legal advice on, and to accept the mother’s costs offer. The father did not accept her offer.
Factors
[15] Rule 24 of the FLR governs the award of costs. Rule 24(1) creates a presumption that a successful party is entitled to costs.
[16] The FLR also require the Court to consider the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour in the case; bad faith of a party; the lawyer’s rates; the time properly spent on the case; expenses properly paid (Rule 24 of the FLR) and offers to settle (Rule 18 of the FLR).
Success
[17] The respondent mother was successful on the motion. Furthermore, the result was better for the respondent mother than the offer she made to the applicant father.
Complexity and Importance of the Issues
[18] Although the issue of interim custody and access was not overly complex or difficult, it was important to both parties.
Unreasonable Behaviour or Bad Faith
[19] As noted in my Endorsement of February 22, 2017, the materials on the motion led me to conclude that the applicant father lacks insight into how his behaviour is seen by others as bullying and is, in fact, bullying behaviour.
[20] In his costs submissions, the applicant father purports to “completely respect my decision” and then proceeds to re-argue his case. He goes on to criticize the respondent mother’s lawyer for failing to provide him enough time to review his bill of costs and to be “concealing” facts from the Court by not disclosing the exchange of settlement offers regarding the costs. In fact, disclosing those offers was improper. The applicant father’s costs submissions also contain negative allegations against the respondent mother (p. 2, response to point (5)), that relate to the merits of the motion.
[21] Based on all the costs submissions filed, I conclude that the respondent mother has done her best to minimize her costs of this litigation and had offered to accept payment of costs from the applicant father much lower than she had actually incurred to successfully resist his motion. The applicant father has acted unreasonably in his refusal to make a counter-offer on the motion and to make an offer on costs that was unreasonably low. The applicant father knew before the motion was heard that the mother was seeking $5,000.00 in costs, but offered to pay less than one-third that amount.
Amount the Unsuccessful Party would Reasonably Expect to Pay
[22] The applicant father is an educated and intelligent person and is gainfully employed. He chose not to be represented by counsel on the motion or, despite the urging of counsel for the mother that he seeks legal advice on the costs issue. He knows that the respondent mother has been incurring legal fees to respond to his motion and that her fees were at least $5,000.00. I conclude that he knew or reasonably ought to have known that, if he lost his motion, the respondent mother would be seeking no less than $5,000.00 for the costs she incurred in advance of the hearing.
[23] Given the number of affidavits filed by the respondent mother, who also prepared a Factum, $5,000.00 was well within the range of a reasonable amount in costs that would need to have been incurred to prepare for the motion.
Hourly Rates, Time Spent and Proportionality
[24] The applicant father takes issue with the time spent and with the scale of costs – 85% post-offer.
[25] Counsel for the respondent mother was called to the Bar in 1983 and practises family law exclusively. His hourly rate is $375.00. I find that to be on the low-end of hourly rates that are charged for lawyers of his seniority and experience.
[26] I have reviewed the time spent by counsel for the respondent mother as set out in her Bill of Costs. It is neither excessive nor unreasonable.
[27] With respect to the issue of proportionality, given the importance to the parties of the issues and the mother’s need to put forth evidence to address and answer the assertions made by the applicant father, I find that the costs claimed by her are proportionate.
[28] In addition to the provisions of the FLR, I am guided by the recent Court of Appeal decision in Berta v. Berta, 2015 ONCA 918. The court in Berta reiterated that costs in family law cases should 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 (at para. 92, citing with approval from Biant v. Sago (2001), at para. 20).
Disposition
[29] For the reasons set out above, and in accordance with Rule 18 of the FLR, I find that the respondent mother is entitled to her partial indemnity costs prior to January 16, 2017 of $4,421.15 and to full recovery of her costs after that date. In fact the respondent mother is seeking only $4,782.95, which is 85% of her “post-offer” costs ($5,627 x 85%). Accordingly, I fix the mother’s costs in the amount of $10,525.20 inclusive of disbursements and HST, which are to be paid by the applicant father.
The Honourable Madam Liza Sheard
Date: April 13, 2017
COURT FILE NO.: FC-16-905 DATE: 2017/04/13 ONTARIO SUPERIOR COURT OF JUSTICE RE: SAM HIMYARY, Applicant AND MAHA (MIRA) AL-YASIRI, Respondent BEFORE: Madam Justice L. Sheard COUNSEL: Applicant - Self-represented Ron Paritzky, Counsel for the Respondent HEARD: Written Submissions on Costs ENDORSEMENT ON COSTS The Honourable Madam Liza Sheard