COURT FILE NO.: FC-15-2618
DATE: 2018/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAIFA ALESRAWI Applicant
– and –
MOHAMMAD-AESAR AWAD Respondent
Jessica Abou-Eid, for the Applicant
Self-Represented
IN WRITING
COSTS ENDORSEMENT
H. J. WILLIAMS J.
[1] The issues in this five-day trial were the following: a. Custody; b. Access; c. Child support and retroactive child support; and d. Travel arrangements.
[2] The mother was almost entirely successful at trial. She was awarded custody of the three children, child support and retroactive child support. The access schedule was amended, primarily to give the mother some time with the children on weekends. In response to the father’s concern about the mother having no family in and few ties to Canada, I ordered that the father be the custodian of the children’s passports. The mother had agreed, however, that the consent of both parties would be required before either parent could travel with the children.
Factors to be considered in a costs award
[3] Rule 24 of the Family Law Rules says that the successful party is presumed to be entitled to the costs of a proceeding, provided the party has acted reasonably.
[4] The factors the court is to consider in setting the amount of costs include: (i) each party’s behaviour; (ii) the time spent by each party; (iii) any written offers to settle; (iv) any legal fees, including the number of lawyers and their rates; (v) any expert witness fees; and (vi) any other expenses properly paid or payable.
[5] The court is to consider the reasonableness and proportionality of each of these factors as they relate to the importance and complexity of the issues.
[6] The court is also to consider any other relevant matter.
The parties’ positions
[7] The mother filed written costs submissions.
[8] The mother’s submissions were served eight days late. In the covering letter accompanying her submissions, the mother said that she would grant the father an extension of time to respond.
[9] The father’s deadline for delivering submissions passed some time ago.
[10] I am satisfied that if the father intended to file responding submissions, he would have done so by now.
The mother’s position
[11] The mother submits that the issues were not complex but were of critical importance.
[12] The mother submits that the parties were at odds on every issue and that the litigation was acrimonious.
[13] The mother submits that the father’s behaviour was unreasonable throughout the litigation. She characterized his behaviour as bad faith. The mother argued that, for example, at a trial management conference just a few weeks before the trial, the father agreed to settle the issue of child support. The trial was scheduled for one day. The father reneged on the settlement on the first day of the trial, which prolonged the trial. The mother also argued that the father had failed to produce documents he was ordered to produce before the trial and then produced new documents throughout the trial. The mother also argued that the father was disorganized and late for court and that his witnesses and interpreter were not always available when he needed them.
Analysis
[14] The mother was successful at trial and did not behave unreasonably. I find that she is entitled to costs.
[15] I agree with the mother that the issues in the case were important but not complex.
[16] As required by Rule 24(12)(a) of the Family Law Rules, I have considered the reasonableness and proportionality of each of the factors listed in paragraph 4 of this endorsement as each factor relates to the importance and complexity of the issues.
[17] In assessing the father’s behaviour, I have taken into account that the father was self-represented at the trial and that the issues of custody and access were highly emotional issues for him. I have taken into account his bitterness and sadness over the breakdown of the marriage and his fears that the mother may indoctrinate the children with beliefs he and his family do not share or that she may return to Syria with the children.
[18] In the circumstances, I would characterize the father’s behaviour as highly unreasonable but not amounting to bad faith.
[19] Some examples of the father’s unreasonable behaviour follow: • The father had not objected to his former lawyer’s motion to remove herself from the record about seven weeks before the trial. The father said that his lawyer had been no help to him at all. At the September 6, 2017 trial management conference, Robertson J. warned the father that the trial would likely proceed as scheduled on September 21, 2017. Two days before the trial, the father requested an adjournment of the trial on the basis that he did not have a lawyer, a request that was rejected by Shelston J. • What was to have been a one-day trial required five days. This was not entirely the fault of the father, in that the mother’s evidence was more protracted than I believe was necessary, but it was significantly the fault of the father. The father had not produced financial disclosure and other documents he had been ordered to produce before the trial and then attempted to rely on documents at trial that he had not previously produced. • The father spent an inordinate amount of trial time focusing on the mother’s deficits not only as a mother but as a wife. The father also repeatedly criticized the mother for caring more about making money than spending quality time with the children and organizing activities for them, oblivious to how his failure to work and to pay any child support may have necessitated her choices. The father was argumentative with the mother and her lawyer and accused both of lying. • In March, I had asked the parties to make an appointment to meet with me to make submissions with respect to whether a form of parallel parenting might be appropriate in the circumstances. At a hearing in May, the mother’s lawyer made submissions with respect to why such an arrangement would not be workable. The father, however, rather than arguing that he should be awarded certain decision-making powers he had suggested at trial the mother should not have, argued only that the mother, who had been caring for the children since birth, was unfit as a mother, that he should be awarded full custody and that the children should live with him.
[20] The terms of the mother’s offer to settle, served September 8, 2017, 13 days before the trial, were either the same as or similar to the orders I made in my July 3, 2018 decision. In her offer, the mother had proposed that each party would bear their own costs.
[21] The mother’s lawyer was called to the bar of Ontario in 2013. Her hourly rate is $235.00. She worked for 111.90 hours on behalf of the mother. Her articling student spent 2.5 hours at $115.00/hour. Total fees were $26,296.50. HST was $3,418.54. Disbursements, which including filing fees, a process server’s fee and photocopying totaled $748.99.
[22] The mother’s lawyer was prepared, well-organized and efficient at trial.
[23] I do not consider the hours spent, the hourly rates or the disbursements to be excessive.
[24] I note that the court need not find that bad faith or other special circumstances exist to make a costs award approaching substantial or full indemnity (Sordi v. Sordi, 2011 ONCA 665 (Ont. C.A.), at para. 21, as cited in Beaver v. Hill, 2018 ONSC 3352 at para. 41.)
Disposition
[25] Having considered all of the above, and placing particular emphasis on the importance of the issues and the father’s conduct, I make the following order with respect to costs: The father shall pay costs to the mother in the all-inclusive amount of $26,173.99, representing fees of $22,500.00, HST of $2,925.00 and the claimed disbursements of $748.99.
[26] In the circumstances, I consider this amount to represent a fair and reasonable amount for the father to pay: Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.).
H. J. Williams J.
Released: 2018/10/11
COURT FILE No. FC-15-2618
DATE: 2018/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Haifa Alesrawi, Applicant
AND
Mohammad-Aesar Awad, Respondent
BEFORE: Madam Justice H. J. Williams
COUNSEL: Jessica Abou-Eid, Counsel for the Applicant
Mohammad-Aesar Awad, Self-Represented Respondent
HEARD: In writing
COSTS ENDORSEMENT
Madam Justice H. J. Williams
Released: 2018/10/11