COURT FILE NO.: FC-16-2579
DATE: 2018/07/16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Julia Kucharski, Applicant
AND
Mamoon Daghistani, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Ian C. Vallance, Counsel for the Applicant
Angela Daniels, Counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
[1] After the hearing of the motions in this matter, the Court granted orders dealing with custody, access, child and spousal support and other miscellaneous items. If the parties were unable to agree on the issue of costs, they were to provide written submissions.
[2] Having considered the parties’ submissions, the bills of costs and the Family Law Rules, O. Reg. 114/99 (the “FLRs”), the Court awards the mother costs in the amount of $8,000 (including HST and disbursements).
Applicant mother’s position
[3] The mother submits that she was successful and is requesting costs on a substantial indemnity basis in the amount of $48,506.62 or at least on a partial indemnity basis in the amount of $34,481.51.
[4] The mother submits that she was successful in obtaining the following orders: interim custody, continuation of supervised access to the father, imputation of income to the father and an order that the father provide financial disclosure.
[5] She denies the father’s allegations that she delayed the hearing of the motion and caused unnecessary expenses and court attendances.
Respondent father’s position
[6] The father submits he was successful on numerous issues including nanny costs, parenting rights and some disclosure requests.
[7] In addition, due to the unreasonable behavior of the mother during this litigation, he is claiming costs. The mother did not serve the cross motion in sufficient time for the August 4, 2017 motion date to allow the father who is in Saudi Arabia to respond She missed the filing deadline for the February 13, 2018 motion so the motion had to be adjourned and was unsuccessful in challenging the issued order which caused another unnecessary court attendance. The matter could have been dealt with on the first court return date on August 4, 2017 and the further appearances would have been unnecessary.
[8] Therefore, he should be awarded costs on either a substantial indemnity basis in the amount of $35,846.33 or on a partial indemnity basis in the amount of $23,897.50.
Legal Principles
[9] In determining costs, the Court must consider the factors set out in Family Law Rule 24.
[10] The Court must also take into account the three fundamental purposes determined by the Ontario Court of Appeal in Serra v. Serra 2009 ONCA 395 which are:
− To partially indemnify successful litigants for the cost of litigation;
− to encourage settlement, and
− to discourage and sanction inappropriate behavior by litigants.
[11] The Court of Appeal also stated in M. (A.C.) v. M.(D.) 2003 18880 (ON CA), 2003 O.J. No. 3707 that the court continues to retain discretion in determining costs and can take into consideration the unsuccessful party’s financial means, the reasonableness of the successful party’s bill of costs and the parties’ behavior.
[12] In Biant v. Sagoo 2001 28137 (ON SC), [2001] O.J. No. 3693 (Ont. S.C.J.), Justice Perkins held that in determining costs on a substantial basis or fully recovery, it should consider the amount claimed, the reasonableness of behavior, success of the parities Rule 24(11) and the ability to pay.
[13] In the determination of costs, the court is not reimbursing a litigant for every dollar spent on legal fees. The Ontario Court of Appeal in Boucher v. Public Council (Ontario) (2004), 2004 14579 (ON CA), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), stipulated an award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay.
Analysis
Who was the successful party?
[14] The parties appeared before me on several occasions to deal with interim relief. In order to measure success, the Court will review the results of each appearance.
March 1, 2018 Motion
[15] The Court’s ruling released on April 9, 2018 granted the following:
− The mother will have interim sole custody of Ryan;
− prior to the mother making a major decision with respect to the child, she will communicate with the father to allow him to provide input;
− the father will have direct access to all documents and records pertaining to the child, including medical, dental, counselling, academic, etc.;
− the mother will keep the father informed with respect to any major issues, developments, including medical, academic and dental issues. She will provide him with copies of academic reports, participation and success in extra-curricular activities;
− neither party will denigrate or speak ill of the other parent. They will encourage a relationship with the other parent;
− the father will continue to have access to the child supervised by the maternal grandmother. Access will be arranged by the parties or through counsel;
− The mother will direct that the grandmother’s role in the supervised access is to be as follows:
• the grandmother should be in the periphery and not be making comments or interfering with discussions between father and son;
• she will not interfere with access;
• she will not denigrate or speak ill of the father;
• she will give the father his space with the child; and
• she will not interfere with any communication between the father and the child.
− the mother will not interfere with Skype or Facetime or other internet conversations between the father and son and she will direct her parents not to interfere;
− the father will be entitled to communicate with the child on a regular basis at least three times per week through Skype and/or Facetime or other internet service;
− the mother will not permanently remove the child from the City of Ottawa and she will continue to be permitted to travel within Ontario or Quebec;
− if she intends to travel with the child, she will provide the time and place to the father and contact information. The parties will arrange their respective holidays to ensure that there is minimum disruption to their respective travel plans while at the same time, that Ryan sees his father on a regular basis;
− commencing July 1, 2017, the father will pay child support in the amount of $3,450 per month.
− commencing July 1, 2017, he will pay his proportional share of the Montessori school (after taking into account taxes, credits, etc.). This will change once spousal support has been determined;
− the mother will advise the father when she obtains employment and provide him with the details of her salary and benefits. If the father finds employment in Canada, he will provide the mother with details of his salary and benefits;
− the father will obtain life insurance designating the mother as irrevocable beneficiary of the policy;
− if the parties cannot agree on any of the following issues:
• the level of spousal support due to the tax treatment issue;
• the disclosure issues;
• life insurance face amount; and
• cost of a part time nanny.
Then the parties are to set up a hearing before me through the trial coordinator’s office.
The interim order may be varied upon a material change of circumstances which may include a change in either party’s employment status or the father permanently moving to Canada.
[16] The parties were unable to agree on the outstanding issues and appeared before me on May 23, 2018 and at that time I ordered the following on a temporary basis:
− commencing August 1, 2017, the father will pay spousal support in the amount of $5,011 per month and 73.9% of the monthly cost of the nanny which is $967 per month (subject to any income tax deductions or credits relating to the expense available to the mother) and certain security for support purposes;
− I also required the father to provide certain disclosure within 30 days;
− the Court ordered on an interim basis that his support payments would form a first charge on the estate and his bank account would be a security for child support;
[17] Before the above motions were heard, the parties appeared before me on August 4, 2017 and the matter was adjourned to permit the father to respond to the mother’s cross motion materials served 4 days before the motion date. At that time, the Court ordered day long visits for the father with his son when previously it had been for only four hours.
[18] A new motion date was scheduled for February 13, 2018. Prior to the scheduled date, the mother requested an extension to file her materials. The parties were unable to agree to a timetable for the filing of the materials which resulted in a phone conference with me on January 22, 2018 at which time the Court set out time lines.
[19] Another appearance occurred before me on May 4, 2018 to deal with the wording of the Order signed by me. Since the draft order prepared by the father’s counsel accurately reflected the wording of my ruling, the signed Order was not vacated.
[20] No formal offers to settle were exchanged. There were no letters exchanged by the parties with suggested proposals or offers to resolve matters. This is quite puzzling given the case law that expects counsel to exchange offers to settle. One would think that with the number of outstanding issues between the parties, they would have made efforts to exchange resolution proposals to minimize costs and risk. See Potter v. DaSilva [2014] O.J. No. 4187 where Justice Zisman stated that “offers to settle are an essential part of family litigation”. She stated at para. 22:
The parties and counsel have a positive obligation to conduct their cases to ensure that the primary objective of the Family Law Rule 2 (2) is met that is, to deal with cases justly. This includes taking appropriate steps to save time and expenses, per Rule 2(3). Offers to settle play an integral role in saving time and expenses by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view it is unreasonable behavior for a party not to make an offer to settle.[1]
[21] Instead, the mother has spent the amount of over $48,000 and the father has spent over $35,000 for an interim motion.
[22] In the determination of costs, the Court can measure success by comparing offers to settle Osmar v. Osmar (2000), 2000 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).
[23] The mother was successful in obtaining interim sole custody but she was required to obtain input from the father and inform him of all major decisions pertaining to the child. He was also granted access to all the documents pertaining to the child and she will encourage a relationship with the father. The Court gave no weight to Dr. Weinberger’s report as it was done without input from the father and without meeting with anh family members.
[24] Supervised access was continued but the Court made a number of stipulations and terms regarding boundaries including terms that the grandmother could not interfere with access visits and not to speak ill of the father. There was not to be interference with father’s communication with the child and the mother was to provide an itinerary and contact information when travelling with Ryan. The Court did not grant the orders requested by mother which included police enforcement and a written direction to the Saudi embassy. She was also expected to obtain input before making major decisions.
[25] The mother was attempting to impute an annual income at $1M and was only able to obtain an order that imputed annual income of $244,000 per annum tax free. The mother had more success as the Court was not prepared to accept that the father only earned income from his hospital employment.
[26] The father’s position was that his income was $175,000 per annum as per his wages at the hospital. The Court did not accept that this was his only source of income.
[27] The father’s position that spousal support should be $2,000 per month and ending in August 2018 was not tenable given the length of the parties’ cohabitation and the circumstances of this case. He unilaterally reduced his support payments to $2800 per month requiring the mother to bring her cross-motion for support.
[28] At the return of the motion on May 23, 2018, the father for the first time argued that his religion prohibited him from owning a life insurance police and therefore he did not own a life insurance police. Accordingly, on an interim basis, the Court ordered an alternative security for support payments as indicated above.
[29] The father was successful on the issue of the nanny as the mother expected the father to contribute towards a full-time nanny whereas the Court found that the expense of a part time nanny was a reasonable s. 7 expense. He was prepared to suggest 10 hours per week for a nanny and the Court ruled that it should be 15 hours. This is close to the father’s position.
[30] Disclosure was ordered but not as completely as set out in the mother’s notice of cross-motion.
[31] Custody and supervised access were main issues that were argued extensively by counsel and extensive materials were filed. The Court found that it is in the best interests of Ryan at this time that the mother makes decisions. Given the flight risk, supervised access was continued.
[32] Given the above, I find that the mother was largely successful on the main issues at the motion but the father was successful on some minor issues. Subject to my comments below, I find that the mother is presumptively entitled to some costs.
[33] I have considered the following the following factors set out in s. 24 (11) of the FLR:
The importance complexity and difficulty of the issues:
[34] The issues were complex. The issue of the father’s income required a review of the records filed and inferences had to be made on the evidence before it. The parties filed materials which assisted the court in its determination of imputed income.
[35] The issue of ongoing support was important to the parties. Ryan’s custody and access were more important issues to the parties; and
The reasonableness or unreasonableness of each party’s behaviour in the case:
[36] I find that both parties showed some unreasonable behavior. Firstly, after argument of the motion in March 2018, the parties both forwarded further materials that were not requested by me. The FLR’s provide a framework for service and filing of materials which are to be completed before the motion is to be heard. Any extra expense for this step should not be borne by the other party.
[37] As discussed above, the August 4, 2017 motion had to be adjourned as although the mother served the cross motion within 4 days as per the FLRs, the father did not have adequate time to respond, especially since he resides in Saudi Arabia.
[38] With respect to the January 2018 hearing, the mother was not able to meet the filing deadlines and the timelines were agreed to on consent.
[39] In his materials, the father has several references over a period of time of moving to Canada, including in the fall 2017. At the time of the motion in March 2018, he continued to indicate that he was moving to Canada but also provided evidence that there are certain qualifying steps that he must take before he can establish a medical practice here.
[40] With respect to the May 2018 appearance, the father obtained the Court issued order without approval as to form and content and unfortunately the parties did not communicate about the order and hence the appearance before me was not meaningful.
The lawyers’ rates and the time spent on the motion, in light of the various issues and case law were reasonable:
[41] I find that the mother’s cost of the motion to be high.
[42] The Applicant’s lawyer’s call to the bar is 1990 and his hourly rate is $425 per hour. His associate of 2015 call is $180 per hour and 2013 call was $210 per hour. I find these rates acceptable. Charging $100 per hour for an assistant is not warranted without details of her expertise if she is not a law clerk and no specifics of what services she provided.
[43] Upon review of the bill of costs, the court questions the actual work performed by each of the lawyers. Details are not provided e.g. “Sephra Smith 51.2 hours - $9,216 and Evan Corey 34.8 hours - $7,308. Hours of this magnitude should be explained in greater detail for each particular individual.
[44] In addition, the Court is not prepared to award costs for the appearances in August 2017 and January 2018 and May 2018 as they could have been avoided.
[45] Accordingly, the Court orders costs which are reasonable and fair in this matter in favour of the mother in the amount of $8,000 (inclusive of HST and disbursements). Given the father has retroactive support payments, he will be given time to pay. The amount is payable within 6 months.
Justice A. Doyle
Date: 2018/07/16
COURT FILE NO.: FC-16-2579
DATE: 2018/07/16
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Julia Kucharski, Applicant
AND
Mamoon Daghistani, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Ian C. Vallance, Counsel for the Applicant
Angela Daniels, Counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
Justice A. Doyle
Released: 2018/07/16