Court File and Parties
COURT FILE NO.: FC-17-1415 DATE: 2018/09/05 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mohamad A. Sharaf, Applicant -and- Razan Abdul Zahab, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Ceilidh Henderson, Counsel for the Applicant Meagan LePage, Counsel for the Respondent
HEARD: In writing
Costs Endorsement
Overview
[1] After the hearing of the motions in this matter, the Court granted the Applicant’s motion for interim unsupervised expanded access and requested the involvement of the Office of the Children’s Lawyer. The parties were invited to provide written submissions on costs.
[2] Having considered the parties’ submissions, the Applicant’s bill of costs, the Respondent’s bill of costs, and the Family Law Rules [1], the Court awards the Applicant costs in the amount of $2,500 (inclusive of disbursements and HST), payable in the amount of $100 per month commencing October 1, 2018.
Positions of the Parties
[3] The Applicant seeks his costs on a full recovery basis as he states he was the successful party on the motion and, prior to the motion, he served an offer which satisfies the requirements of Rule 18(14) of the Family Law Rules. The Applicant also submits that the Respondent was vindictive and unreasonable, such that these proceedings were unnecessary. The Applicant seeks his costs on a full indemnification basis, in the amount of $7,784.68, inclusive of HST and disbursements.
[4] The Respondent submits that no costs should be awarded on the motion. The Respondent takes the position that success was divided on the motion, because the Court granted the Respondent’s request to refer the matter to the Children’s Lawyer. The Respondent states that she also made an offer to settle which offered unsupervised access, albeit in a public location (at a shopping mall), which is the same position she advanced at the motion. The Respondent states that her conduct was not vindictive but reasonable in the face of the events that took place. The Respondent has provided her own bill of costs for legal fees she incurred with respect to the motion, which totals $3,073 inclusive of HST. She states the Applicant’s bill is excessive in that it includes all of his legal fees from the start of the court proceeding, when only costs on the motion should be considered. Lastly, the Respondent states that she is unemployed, with limited ability to earn income, is on social assistance with no substantial assets, such that an order of costs against her would impose a financial hardship and impact her ability to support the child.
Legal Principles
[5] The Ontario Court of Appeal in Serra v. Serra [2] confirmed that the modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[6] Rule 18(14) of the Family Law Rules provides:
A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[7] Even when one party is presumptively entitled to costs under Rule 18(14), the Court retains the ultimate discretion in awarding costs. This discretion must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case, including the unsuccessful party’s financial means, the reasonableness of the successful party’s bill of costs and the parties’ behavior [3].
Analysis
Success of the Parties
[8] I do not agree with the Respondent’s position that success on the motion was divided due to the Order including a referral to the Children’s Lawyer. The substance of the dispute between the parties was the Applicant’s request for access, and for that access to be unsupervised and expanded. The Respondent’s request to appoint the Children’s Lawyer was primarily framed as a reason to delay any meaningful expansion of the Applicant’s access until the Children’s Lawyer had an opportunity to investigate the matter. This position was rejected by the Court.
[9] When considering the whole of the motion, and the central essence of the dispute between the parties, I find that the Applicant was the successful party on the motion and is presumptively entitled to his costs of the motion pursuant to Rule 24(1) of the Family Law Rules.
[10] The Applicant’s Notice of Motion was dated February 15, 2018. Based on the itemized invoices for the Applicant’s legal fees, I find that the Applicant’s costs related to this motion, totalled $4,342.79, inclusive of HST and disbursements. This amount excludes the costs incurred by the Applicant prior to January 19, 2018 which I am not prepared to find, based on the evidence before me, relate to this motion. Those costs may be dealt with at trial.
[11] The above costs are based on the Applicant’s counsel’s hourly rate being $130 per hour, which I find is reasonable.
[12] This amount includes a small amount for disbursements related to process server expenses. I find those disbursements reasonable. I have not included in this amount the Applicant’s cost of translation services. I do not have evidence before me to support a finding that this expenses was incurred for the purpose of this motion, nor do I have evidence of the amount of the expense, other than an email from the Applicant. The cost of the translation services paid by the Applicant may be dealt with at trial.
[13] In totality, I find the Applicant’s costs of the motion, in the amount of $4,342.79, inclusive of disbursements and HST, to be reasonable and proportional to the issues in dispute, given the complexity and importance of the issues.
Offers to Settle
[14] The Applicant served an offer to settle on July 9, 2018. The motion was argued on July 17, 2018. Although the Applicant’s offer did not include a referral of this matter to the Children’s Lawyer, I find that the Order granted is, in a general overall comparison, as or more favourable on all issues than the Applicant’s July 9, 2018 offer. In particular, the Applicant’s offer provided for him to have initial access every second Saturday, along with other access, whereas the Order granted him initial access every Saturday, along with other access. With respect to the referral to the Children’s Lawyer, at the motion the Applicant did not oppose the referral to the Children’s Lawyer but confirmed his position that he did not want such a referral to delay the reintroduction of his expanded access, which is what the Respondent was seeking. The Applicant’s offer satisfies the requirements of Rule 18(14) of the Family Law Rules.
[15] The Applicant is therefore presumptively entitled to his costs on a full recovery basis from the date the offer was served, in addition to the other costs he may be entitled to recover on the motion. The Applicant’s costs from the date his offer was served are a portion of his total costs of the motion of $4,342.79. Based on the Applicant’s bill of costs, including the detailed time invoices of his counsel, I find that the portion of the Applicant’s costs that relates to the period after his offer was served on July 9, 2018 is $1,344.45 (inclusive of disbursements and HST).
Respondent’s Ability to Pay
[16] The parties are of limited financial means. When fixing costs, the Court cannot ignore the best interests of the child and the impact that a costs award may have on those interests. These considerations apply to both parties’ ability to provide for the child while in that party’s care.
[17] Even when the unsuccessful party is of limited means, the three fundamental principles of a modern costs award, set out in paragraph 5 above, must still provide the overarching framework for the exercise of the Court’s discretion to arrive at an award that is a fair and reasonable amount that should be paid by the unsuccessful party. The limited financial means of an unsuccessful party who is a custodial parent cannot be a bar to a costs award being made against them, or the purpose of the costs award will be defeated. It is reasonable and fair in the circumstances before me to find that the Respondent, particularly given her own legal fees, should have expected to pay some costs to the Applicant if she was not successful in her position on the motion.
Conclusion
[18] Given the Applicant’s success on the motion, the offer to settle that he made on July 9, 2018, all of the factors under Rules 18 and 24 of the Family Law Rules, the Respondent’s financial circumstances, as well as those of the Applicant, I order the Respondent to pay costs to the Applicant of the motion heard on July 17, 2018, fixed at $2,500 (inclusive of disbursements and HST), payable in the amount of $100 per month commencing October 1, 2018.
Justice P. MacEachern Date: September 5, 2018
COURT FILE NO.: FC-17-1415 DATE: 2018/09/05 ONTARIO SUPERIOR COURT OF JUSTICE RE: Mohamad A. Sharaf, Applicant -and- Razan Abdul Zahab, Respondent BEFORE: Justice P. MacEachern COUNSEL: Ceilidh Henderson, Counsel for the Applicant Meagan LePage, Counsel for the Respondent costs ENDORSEMENT Justice P. MacEachern
Released: September 5, 2018
[1] Family Law Rules, O. Reg. 114/99, as am.
[3] Family Law Rules, Rule 18(14), Rule 18(16); M. (C.A.) v. M. (D.) 2003 ONCA 18880, [2003] O.J. No. 3707 (Ont.C.A)